Ephraim Okoli Dim V. Isaac Enemuo (2009)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C.

From the instant record of appeal the Plaintiff claims in this suit in the High Court of Anambra State against the Defendant, a declaration of title, damages for trespass and injunction. Pleadings have been filed and exchanged between the parties. At trial court, the Plaintiff called 4 witnesses to prove his case. The Defendant’s only witness called in the case is an Assistant Chief Registrar of the High Court to tender the judgment in Suit No.AA/19/74 which among other exhibits has been admitted in evidence and marked Exhibit’ “E” At the conclusion of the oral hearing the parties have addressed the court.

In a considered judgment the trial court in dismissing the plaintiff’s claim in toto has found for the Defendant. Aggrieved by the decision the Plaintiff has appealed to the Court of Appeal, Enugu Division (lower court). The Lower Court having allowed the appeal, it set aside the decision of the High Court. Dissatisfied with the decision, the Defendant has now appealed the decision of the lower court by a Notice of Appeal filed on 6/3/2002 containing 12 ground of appeal.

In this court the Plaintiff and Defendant are respectively designated as appellant and respondent. In compliance with the Rules of this Court the Appellant and the Respondent have filed and exchanged their respective briefs of argument in the appeal. In the Appellant’s brief of argument have been distilled five issues for determination and they are as follows:

“(a) Whether the Court of Appeal was right in reversing the judgment of the learned trial Chief judge in view of the peculiar facts and circumstances of the case?

(b Whether the Court of Appeal was right in the treatment and conclusion on Exhibit E?

(c) Whether the Court of Appeal was correct in holding that Defendant had the duty to prove that he belonged to Umuike family of Okpu town and that he is the undisputed owner exercising maximum and numerous acts of ownership therein and, that the Defence conceded to the Plaintiff’s ownership of the disputed land?

(d) Whether the Court of Appeal was right in raising some weighty issues suo motu and deciding same without hearing the parties thereon?

(e) Whether the Court of Appeal rightly rejected Exhibit E as constituting estoppel per Rem judicata or even issue estoppel?”

The Respondent has filed a brief of argument; even though the issues for determination raised therein are substantially identical to the Appellant’s, all the same, for completeness they are set out as follows:

“1. Whether the judgment of the Court of Appeal was right when no evidence is led by the Defendant in support of his pleadings.

Whether Exhibit “E” qualifies to operate as estoppel per Rem judicata in this case.

Whether pronouncing on all issues placed before the court amount to raising issues suo motu by the court.

Whether the Court of Appeal was right in reversing the High Court judgment when the same is perverse.”

The core facts of the case in a resume are as culled out from the judgment of the Lower Court at page 197 of the Record, they read as follows:

“The plaintiff who is the Okpala of Umonyeche family of Akpu in Orumba, Aguata local Government Area of Anambra State, claimed that he is the owner of a parcel of land called ‘Ani Ofe Mili Onyeche’ which the land in dispute forms a part and that the defendant and his family who are natives of Umudim in Aro Ogwe, are his customary tenants. The defendant denied that he is a native of Umudim in Aro Ogwe, Orumba, and insisted that his family is called ‘Eze Ihedukwa’ and that from time immemorial ‘they belong to the extended family of Umuezili, Umuike, of Akpu Town like the plaintiff. To lend judicial affirmation to the assertion that he is not a stranger but an indigene of Akpu Town with the right to hold land the Defendant pleaded in paragraph 34 of his amended statement of Defence an earlier judgment of the Anambra State High Court in Suit No.AA/19/74 instituted against him by one John Okoli which was dismissed on the ground that he, the defendant, is a native of Akpu and not a stranger.”

The record also shows witnesses that the Plaintiff has testified as PW1 as well as his 3 witness i.e PW2, PW3 and PW4. The main plank of their testimony bears to the effect that Okoli Mgbafor, a grandson of the Plaintiff’s family lived on the land in dispute as a customary tenant of Umuonyeche family and brought in the Defendant and his kinsmen unto the land in dispute as his domestics. Later on he Okoli Mgbafor vacated the land in dispute with his domestic servants i.e. the Defendant and his kinsmen. The said land in dispute has to revert to the Plaintiff’s family of Umuonyeche. It is the plaintiff’s case that without the consent of Umuonyeche family, the Defendant and his kinsmen later went back to the land in dispute (which has reverted to the plaintiffs harvested economic trees thereat. And when confronted have laid claim to the land in dispute as owners in possession.

This is the genesis of the institution of this action. I must with respect, repeat that the Defendant, apart from DW1 i.e. the Assistant Chief Registrar, who has tendered Exhibit “E”, has called no other further evidence at the trial.

I think I should stop so far as I perceive that the foregoing facts have captured the real essence behind the cause of action in the case and on which the core issues for determination of the appeal have otherwise to be predicated upon. The Plaintiff at the trial court has testified and so also his 3 witnesses. The Defendant’s only one witness has been the Assistant Chief Registrar of the High Court of Anambra State who has tendered from his custody a certified copy of the judgment in Suit No.AA/19/74 between John Okoli and Okoli Dim & Another marked as Exhibit “E” in this case. More facts are as contained in the body of the judgment.

In the course of the proceedings some critical documents as Exhibits A and B, the respective survey plans of the Plaintiff and the Defendant as well as Exhibit C and D – the respective testimonies of Stephen Okoli and Nwafor Obodo before another judge and lastly Exhibit “E” – the judgment in AA/19/74, have been received in evidence.

The Appellant in his brief of argument, if I may treat with advantage issues one and three together, has relied on the case Olugbade v. Sangodey (1996) 4 SCNJ 1 to contend that the trial court is well placed in the circumstances of the case having seen, heard and watched the demeanours of the witnesses in the case to evaluate and ascribe probative value to the evidence of the witnesses; the function being one entirely within its province; and that the lower court has wrongly intervened to upset the findings of facts of the trial court when there is no credible evidence adduced by the Plaintiff and his witnesses to justify the Lower Court’s intervention in this matter and even at that to show that the Defendant is a stranger in Ezeilo family a crucial issue in the case. See: Nteogwuile v. Otuo (2001) 6 NWLR (Pt. 738) 58 (2001) 9 SCM, 111 at 64 and Bashaya v. The State (1998) 4 SCNJ 202 at 204. he also has reminded the court that the Plaintiff seeking a declaration of title must succeed on the strength of his case not on the weakness of the defence although the weakness of defence may in some cases assist the Plaintiffs case. See: Adeniran v. Alao & Anor (2002) 1 SCM 1 at 126.

On issue two that is, on whether the court below is right in its treatment and conclusions on Exhibit “E”, the Appellant states that in Paragraph 34 of the Statement of Defence of the suit No. AA/19/74 of the Awka High Court has been pleaded to debunk the Respondent’s case that the Defendant is a stranger in Akpu Town. The trial Court in the cited case has found that the Defendant is a native of Akpu Town. This point has not been challenged on appeal. He reminds the Court that the attentions of both the Plaintiff as PW1 and his witness PW2 have been drawn to their respective testimonies in Suit No. AA/19/74 as witnesses for the Plaintiff (i.e. John Okoli) therein, particularly with respect to their assertions that the Defendant and his kinsmen are strangers in Akpu and have paid homage to one Ezeilo. The Appellant has stated that the court below has totally misconceived the evidential value of Exhibit “E” as no witness has been cross-examined on the material parts of it. He distinguishes the cases of Duruminiya v. Commissioner of Police (1961) ANLR.70 (and the Queen v. Wilcox (1961) 1 ANLR -) where a whole book has been tendered with no particular reference to any page of the book from the instant case the judgment of a competent court. He relies on Section 132(1) and Section 54 of the Evidence Act to submit that the conclusions of the court below on Exhibit “E” are unsupportable.

He has queried the propriety of the findings of the lower court that on the Defendant ies the duty of proving that he belongs to Umejili Umuike family of Akpu as the onus rests on him; furthermore, to show that he as the owner in possession has exercised numerous and positive acts of use on the land in dispute. The Appellant has relied on Sections 136 and 137 of the Evidence Act and the case of Adeniran v. Alao & Anor. (Supra) to opine that as the Appellant (Defendant at the trial court) who has not counter-claimed that the burden of proof rests squarely on the Plaintiff as regards facts alleged by the plaintiff in his pleadings; the onus will not shift until that burden is successfully discharged. However, the court is reminded that the trial court has found that Plaintiff’s case in sum has lacked probative value and that the conclusion of the trial court should not have been interfered with.

On issue four, that is, on the question of new weighty issues suo motu raised and resolved by the lower court without hearing the parties; the Appellant has submitted that the lower court has raised a number of new issues, one of such issues is the contention that DW1 is not a witness within the meaning of section 193 of the Evidence Act as the sole purpose of calling him is to tender Exhibit E and so he has not been cross examined, the appellant submits that it is wrong to have gone ahead to resolve it without giving any hearing to the parties and thus has occasioned a miscarriage of justice.

The Lower Court has also raised the question whether Exhibit “E” could constitute estoppel per Rem judicatam or issue estoppel in the absence of sameness of parties, the issues and subject matter in both suits i.e. AA/19/74 and the instant suit; again, a pronouncement castigated by the appellant as having been reached without having given to the parties the chance to contest the issue.

The Appellant has relied on Exhibit E as pleaded in paragraph 34 of the Amended Statement of Defence to submit that in Suit No. AA/19/74 between one John Okoli – the son of Mgbafor Okoli and 1st Defendant and another that the issue of whether the Defendant is a stranger in Akpu Town has been conclusively settled and that PW1 (i.e. Plaintiff) and PW2 (both witnesses in Suit No.AA/19/74) respective attentions have been drawn to that case. The Appellant submits that paragraph 34 of the Statement of Defence has sufficiently pleaded estoppel per rem judicata or issue estoppel and relies on Alade v. Olukade (1976) 2 FNR Ratio 7 for so submitting.

The court is urged to allow the Appeal set aside the judgment of the court of Appeal and restore the judgment of the trial court.

The Respondent’s case on issue one is as borne out from his brief of argument i.e. whether the judgment of the lower court is right when the Defendant led no evidence in support of his pleadings. He restates his assertion as per the traditional history of his family and how the land in dispute known as “Ana Ofe Mili Onyeche” has come down to the Plaintiff and the numerous acts of use as farming and harvesting of economic trees being exercised on the said land. It is told how the Defendant and his kinsmen have lived with one John Okoli on the said land as his domestics and how the Plaintiff have allotted farmlands to Defendant and his kinsmen as customary tenants until the quarrel between John Okoli and the Defendants leading to John Okoli dispossessing the Defendant and his kinsmen of their lands which action has precipitated the Suit in AA/19/74. i.e. John Okoli v. Okoli Dim & Anor and the judgment in Exhibit “E”. The Respondent has asserted that Eze Ihedukwa sub-family of the Appellant i.e. the Defendant is not known to him and that it is not of the five sub-families of Umuezeilo extended family as follows: Umuezeohu, Umumbanko and Umuokoronkwo Aku.

Still on issue one the Respondent contends that having led evidence as per his pleadings as against the failure of the Defendant (appellant) to do the same with regard to his pleadings that the Defendant has not set up any case which will have to be weighed in the imaginary scale against the Plaintiff’s case. See: Iyose v. Ubthmb (2000) 2 NWLR (pt. 643) 45 and Akinfosile v. Ijose (1960) SCNLR 477. He submits that Defendant has attempted to discredit the Plaintiffs case by cross-examination but observes that any evidence so elicited which is contrary to the pleadings even when extracted through cross-examination goes to no issue. See: Aniemeka Emegokwue v. James Okadigbo (1973) 4 SC 113 at 117, I.B.W.A. v. Imano (Nig.) Ltd. (2001) FWLR (PT. 44) 421 and Akintola v. Solano (1986) 2 NWLR 598 at 620.

On issue two i.e. on whether the lower court is right in its treatment of and conclusions on Exhibit “E” – (a certified true copy of the judgment of the same Awka High Court in AA/19/74) which has been treated as grounding a plea of Res judicata or issue estoppel in this action, the Respondent has posited that since the subject matter i.e. the two lands in dispute are differently owned by John Okoli and Isaac Enemuo and as the parties, and issue are not the same in both suits that the requirements for a valid plea of Res judicata or issue estoppel are not present here thus making principle in this case. See: Ojemen v. Momodu (2001) FWLR 1138 at 1143. The Respondent has reminded the court that the averments in the statement of defence to the effect that the Appellant in not a stranger in Akpu still remains as a mere averment as there is no evidence from the defendant to give life to the said averment. See: Ibenye v. Agwu (1998) 11 NWLR (Pt.574) 372 at 380.

It is also contended that Exhibit “E” has practically been dumped on the trial court as DWI has not been cross-examined on Exhibit “E” thus making it so worthless evidentially and that DWI is not a witness in this suit as per Section 193 of the Evidence Act. See: Duruminiya v. Commissioner of Police (1961) ANLR (Pt.) 70 at 74, Queen v. Wilcox (1961) ANLR 631 at 634, Bornu Holding Co. Ltd. v. Bogolo (1972) 1 ANLR 324 at 329 – 332, Adesoye v. Gardner (1977) NMLR 136, and Onibudo v. Akibu (1982) 13 NSCC 199 at 207. In support for rejecting exhibit E by the lower court the Respondent has referred to Agbaje v. Adigun (1993) 1 NWLR (Pt. 269) 261. It is submitted that the Appellant has placed nothing before the court yet expects to succeed on nothing; and even moreso that the evidence of PW1 and his witnesses not having been damaged in cross-examination, the lower court rightly has found for the Respondent in this case.

On issue three, the Respondent has denounced the contention that the lower court raised issues suo motu and resolved them without hearing from the parties and has described it as a mere speculation. He however has asserted that the lower court has the power to resolve issues properly raised by the parties in their respective briefs of argument when they are on material issues and this has to depend on the facts and circumstances of each case. See. State v. Ajie (2000) FWLR (Pt.16) 2833, Olowolagba v. Bakare (1998) 3 NWLR (Pt.543) 528 at 529. He submit that all the issues considered by the lower court under issue three have been raised in the parties’ briefs of argument making it a duty on the court to pronounce on them. The Appellant should not therefore complain.

Issue four i.e. on whether the lower court is right in reversing the judgment of the trial court; it is submitted that this is perfectly so when the judgment is perverse. The Respondent has relied on Nwadiogbu v. Nwadozie (2001) FWLR (pt.61) 1625 at 1628 to justify the lower court’s interfering with the findings of facts of the trial court particularly as the findings have not been supported by the pleadings and/or evidence. He has deprecated as unwarranted, the reliance placed on Exhibit E which the Appellant i.e. Defendant has dumped on the court through DW1 without his being cross-examined on it. See: Onibudo v. Akibu (supra) and contends it has no evidential quality.

In conclusion the court is urged to dismiss the appeal and uphold the judgment of the Court of Appeal.

I have reviewed as well as given considerable thought to the cases of the parties to this appeal. The Plaintiff’s case is as pleaded in his further Amended Statement of Claim. In it he has pleaded the traditional history of his family of Umuonyeche and how the family has come to own the land in dispute known as “Ana Ofemili Onyeche”. The Plaintiff has depicted the Defendant/Appellant and his kinsmen as no more than “domestics” and customary tenants, and as migrants from Umudim Aro-Ogwe. The Plaintiff in expatiation of the pleaded facts has said that one Okoli Mgbafor Ezeobu, a grandson of the Plaintiff’s and after him John Okoli (his son), who has inherited them (the Defendant and his kinsmen) from his father. And it is the Plaintiff’s case that at each farming season the Plaintiff’s family allots farmlands to the Defendants, servant of Okoli Mgbafor. Continuing the plaintiff has pleaded of how Okoli Mgbafor has left the land in dispute along with his domestics i.e. the Defendant and his kinsmen and moved to a new location outside the land in dispute i.e. completely outside Umuonyeche family land which otherwise tantamounts to an act of abandonment of the land in dispute under native law and custom of Akpu. It is further pleaded that as a result of a dispute (i.e. misbehaviour of the Defendant and his kinsmen) between the Defendant and his kinsmen as domestics and their master John Okoli the Defendant have to be dispossessed of their lands hence they have reverted to the Plaintiff’s land in dispute the land they have long abandoned; they have since laid claims to the same.

The Plaintiff has pleaded an arbitration conducted by members of Umuezeilo extended family of both parties; in the result, the elders of Umuezeilo family have looked into the matter and handed down a warning to the Defendant and his kinsmen not to enter the land in dispute without leave of the Plaintiff; they have also reduced their decision to writing and given a copy to each side. This is a synopsis of the plaintiffs averments in his pleadings and it is in the main as to the status of the Defendant and his kinsmen vis-a-vis the plaintiff and his people.

On the other hand, the Defendant has filed his Defence and in it has pleaded exhibit B the survey plan of the land in dispute and a judgment in suit No.AA/19/74 as Exhibit E between John Okoli v. Okoli Dim & Another upon which has been founded the plea of Res judicata or issue estoppel as the reliefs sought in the two land cases by the Plaintiff in both cases are the same albeit against the same Defendants. The Defendants has repudiated the Plaintiff’s case as pleaded. The Plaintiff as PW1 and his witnesses as PW2, PW3 and PW4 have testified and have been cross-examine on Exhibit E. The Defendant has called no further evidence apart from tendering Exhibit E through DW1.

The Plaintiff, it seems to me, has premised his claim in this case on the twin bases of relying on traditional history and acts of user in possession to prove his title to the land in dispute. All I can make out of the plaintiff’s case is that the Defendant and his kinsmen are not part of the land owning family in Ezeilo extended family in Akpu. There can be no doubt that this is a land case with a little twist of difference from the ordinary run-of the mill type of land disputes. This will become more manifest in a while from here.

From the plaintiff’s pleadings and oral testimony in support in his case it goes without any doubt that for the plaintiff to succeed in this case he has also the burden of showing that the Defendant and his kinsmen are not full blooded members of Umuonyeche family i.e. Umuezeilo extended family of Akpu; in others words that it is an accepted fact that the Defendant and his kinsmen are strangers in Akpu and are domestics and customary tenants. And that even although they as domestics have occupational rights of the land allotted to them, even then that under Akpu native law and custom they suffer from major disabilities as to land ownership in Akpu Town being strangers; in other words the Defendants are subject to what is otherwise akin to House Rule System and its incidences.

In this matter the plaintiff has the further burden to prove up to the hilt the alleged abandonment of the land in dispute by the Defendants and his kinsmen and their unwarranted re-entry.

I intend to examine the plaintiff’s case here from two perspectives, angle of how it is pleaded and secondly the evidence adduced in support of the pleadings. This case is about title to the land in dispute otherwise known by both sides as Ana Ofemili Umuonyche verged pink in both Plaintiff and Defendant plans Exhibits A and B. It is settled that the onus is on a plaintiff seeking a declaration of title to a land in dispute to establish his title on the strength of his own case and not on the weakness of the Defendant’s case although the weakness of the defence case may in some cases assist the plaintiff’s case. That is to say, that the Plaintiff going by his averments in his pleadings has to aver and prove by his case how he and his progenitors have acquired title to the land in dispute under native law and custom of Akpu and not merely to show that he has a better title than the Defendant. There are decisions of this court showing that the onus in such until the Plaintiff has completely and successfully discharge the onus on him in this regard. See Kodilinye v. Odu (1935) 2 WACA 336 at 337, Kofi v. Kofi (1933) 1 WACA 284 and Okulate v. Awosanya (2000) 1 SC. 107.

There are quite a number of holes, big ones for that matter to pick in the plaintiff’s pleadings of his case per his further Amended Statement of Claim and the oral testimonies to prove his case; in paragraph 3 at page 70 of the Record he has averred thus:

“From time out of memory, plaintiff’s family had been exclusive owners in possession of the parcel of land in dispute called Ani-Ofe-Mili Onyeche situate at Akpu Orumba:.

The PW1 testifying at page 65 of the record at LL.3-4 said:

“Ezeilo l was our great ancestor. Ezeilo 1 was the founder of the 5 sub-families of Umuezeilo”.

That is the furtherest he could go in tracing his genealogy vis-a-vis the devolution of the land in dispute through the generations to his generation. On the principle decided in Mogaji v. Cadbury (Nig) Ltd. (1985) 2NWLR (Pt. 7) 393, it is incumbent on the plaintiff once he traces the root of his title to Ezeilo or Ezeilo family to plead and prove how he or the family has come to acquire title to the land in dispute. This he has failed to do. How the plaintiff has acquired the root of his title to the land in dispute has not been pleaded with the particularity as to show the intervening owners through whom the land in dispute has devolved to him, that is to say, the origin of the Plaintiff’s title to land in dispute to the exclusion of the Defendant.

Nothing could be clearer from the foregoing abstracts than the fact that the plaintiff has not pleaded nor has he led preponderance of evidence of who his ancestors are, how they have acquired the land in dispute and that the land in dispute belongs to his family and is family communal property. See: Atuanya v. Mbajekwe (1975) 3 SC.616 at 617. The pleadings are clearly deficient in these respects. Even then, having asserted that Ezeilo is his great ancestor; the plaintiff has the onus of showing how the land in dispute has devolved on Ezeilo and how he has acquired it, by grant or first founder of the settlement as the case may be and then from him (Ezeilo) to the plaintiff. See: Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7) 393; Ohieri v. Udoetuk (1993) 3 NWLR (Pt.279) 94 at 96. His traditional history is anything but satisfactory. It is a non-starter.

The plaintiff has not pleaded specifically his acts of user in possession of the land in dispute, that is to say, by various, positive and numerous acts of possession over a long period of time to prove his ownership of the land in dispute. He has told how the family has put Okoli Mgbafor on the land as customary tenant with his domestics i.e. the Defendants and his kinsmen to whom they have allotted farmlands and furthermore how the Defendant and his kinsmen have abandoned the land to another land, along with Okoli Mgbafor their overlord, and how the Defendant and his kinsmen have reverted to the land in dispute without leave and therein have exploited all the economic trees and cash crops on the land and farmed the land without any leave from the plaintiff’s family. It must be noted that the incidences of customary tenancy in this regard have not been pleaded by the plaintiff. This solitary act of ownership has not been satisfactorily established both on the pleading and on the evidence adduced to establish the same.

The trial court at page 116 of the record has in these respects found thus,

“With regard to (a) pleadings of the plaintiff in relation to the reliefs he claims, plaintiff’s averment on how the 1st Defendant ‘was brought’ into the family of late Okoli Mgbafor, father of the plaintiff in suit No.AA/19/74 is far from clear. 1st Defendant was emphatic that he is a member of Ezeilo family of Akpu whose sub-family is Umu-Ihedukwa within Ezeilo extended family.

Both Plaintiff and 1st Defendant are agreed that all members of the sub-families of Umu-Ezeilo left or vacated or abandoned their respective family lands on the Ofemili side of Aghoumili stream. The preponderance of evidence was that 1st Defendant and his people were ‘attachees’ to the family of Okoli Mgbafor whose son was the Plaintiff who sued the 1st Defendant in suit No.AA/19/74 which was dismissed for a reason or reasons in the said suit now referred to. If the Plaintiffs case was that 1st Defendant vacated the Ofemmili land of Okoli Mgbafor along with the latter what tangible reason would their (sic) be for 1st Defendant to jump into the land of the Plaintiff. Further, if every sub-family of Ezeilo family still retained its land in Ofemmili why would not the 1st Defendant? The 1st Defendant would be subject to disability to return to Ana Ofe Ofemmili only if he is not a member of one of the sub families of Ezeilo. Neither by his pleading nor by his oral evidence was the plaintiff able to show that the 1st Defendant is not a member of Ezeilo family either 1 or 11. The Plaintiff’s traditional history as pleaded regarding ownership of the land in dispute is unconvincing.” (Underlining mine for emphasis).

I have set out the foregoing findings of facts to show that the trial court has appreciated on whom lies the onus in this case, and that the burden of proof lies on the Plaintiff throughout in this matter. He has failed to discharge the burden in the opinion of the trial court as I have adumbrated above and on the backdrop of my reasoning above I confirm the above findings as sound and as having derived from the facts found by the trial court; having fail to discharge the burden of proof on him in this regard successfully the onus does not shift to the Defendant; until this is done the court is not obliged to look at the Defendant’s case – this being an action as to declaratory rights. These findings are well grounded having been based on the evidence before the trial court. Much heavy weather has been made by the Respondent that the Appellant as Defendant having led no evidence in support of his pleadings has admitted the Plaintiff’s case in toto and has more or less abandoned the averments contained in the amended statement of defence and that any evidence elicited in cross-examination by the Defendant which is not pleaded goes to no issue.

I agree that a party’s case is as a set out in his pleadings and proved by evidence. See: Aniemeka Emegokwue v. James Okadigbo (supra) but respectfully the plaintiff has totally misconceived the burden on him in this case. In respect of the burden of proof of declaratory rights Obaseki JSC has eloquently restated the guiding principle in the case of Vincent Bello v. Magnus Eweka (1981) 1 SC. 101 thus:

“It is true as was contended ……….by the Appellant’s Counsel that Rules of Court and Evidence relieve a party of the need to prove what is admitted but where the court is called upon to make a declaration of right it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence not by admission in the pleading of the Defendant that he is entitled to the declaration. The law is thus established that to obtain a declaratory relief as to right, there has to be evidence which supports an argument as to the entitlement to such a right. The right will not be conferred simply upon the state of the pleadings or the admissions therein. See: Nelsger v. Department of Health & Social Welfare (1973) 3 AER 444 at 457 where Megary V. C. observed, “The court does not make declarations just because the parties to litigation have chosen to admit something. The court declares what it has found to be the law after proper argument not merely after admission by the parties. There are no declarations without argument. That is quite plain’. See also Sorugbe v. Omotawuse (1988) 3 NSCC (Vol, 19) 252 at 262.” (underlining for emphasis).

The implication of the foregoing cited case to this case is, firstly, it is wrong for the lower court to say that because the Plaintiff has not led evidence as to his paragraphs 3 and 4 of the Defence he has conceded to paragraphs 2 and 3 of the Statement of Claim and is thereby entitled to judgment by operation of law.

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SC.281/2002