or that a court will abandon a pending application in its file while adjourning for judgement (Animashaun vs. Gov. of Lagos State (2005) All FWLR (Pt. 247) 1565). These settled principles give us logical conclusions to make, akin to the popular abductive reasoning we have in the Duck test. While the duck test is totally unconnected to legal reasoning, logic would seem to favour the test. The test goes thus:
If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.
ANOR v. NWABUEZE (2014) LPELR-22526(CA) stated this position in the following words:
“Declaratory reliefs should only be granted based on evidence adduced by the Plaintiff. See JULES VS. AJANI (1980) 5 – 7 SC 96; OGOLO VS. OGOLO (2006) 2 S.C. (PT. 1) 61 or (2006) 5 NWLR (PT.972) 173. Therefore a declaratory order cannot be made in a proceeding for judgment in default of defence or Summary Judgment. Consequently, the proper step to take when there is a claim for declaratory relief is for the court to order the Plaintiff to prove his claim by calling evidence. See NIGERIA AIRWAYS VS. AHMADU (1991) 6 NWLR (PT. 198) 992 and ILOBI VS. UZOEGWU (2005) ALL FWLR (PT.285) 595; OGOLO VS. OGOLO (Supra).” Per OSEJI, J.C.A. (P. 27, paras. C-F)
“Issue 2 is on the lower court’s reliance on the respondent’s witness statement on oath to grant declaratory reliefs. In an action for declaration of a right, the plaintiff must satisfy the court by credible evidence that he is entitled to the right he claims.
The claim for declaration cannot be granted on admission of the defendant. See Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299; Ochonma v. Unosi (1965) NMLR 325.
In my view, evidence to support a claim for declaration can be oral or documentary. As rightly held by the lower court, the Rivers State High Court (Civil Procedure) Rules, 2006 provides for the filing of witness statement. In compliance with the rules, the respondent filed a witness statement made on oath. The witness statement is in the nature of affidavit evidence… The requirement that a plaintiff must by credible evidence satisfy the court that he is entitled to the declaratory relief he claims is satisfied by the witness statement made on oath pursuant to the 2006 rules of the Rivers state High Court… Pre-2006 decided cases on the issue of adoption of witness statement are inapplicable because of the requirement for witness statement on oath”
Last modified: August 5, 2023
Nice exposition of the law
This is actually a wake up post. I have something similar to this but my thinking was that even if I don't file counter the application seeking default judgement against my client the head claims of which are declarative reliefs cannot fly. Now, I wil do the needful. Thanks to this post and particularly the enviable author.
That apart, I think for the fact that court is manned by men, some circumstances will prompt them to stylishly deviate in the name of applying the established principle from another perspective as in this case. In any even and particularly in the circumstance of the case under review, no injury is done to justice. A defaulting party is right to be treated as conceding to the claim of the claimant and taking statement on oath as a sufficient evidence will save the precious and scarce judicial time. I love the decision.
Thanks for your comments. The perspective of justice is also important. Noted sir.
This is a very insightful write up.
Personally, I feel the court was, with respect wrong on that particular position.
The law is absolutely settle that when it comes to the issue of declaratory relief, the claimant can only succeed on the strength of his case and not even on the weakness of the defense, ADEWUSI V. ADESHINA (2018) AFWLR (PT 935) & IDUROBO V. EHIOROBO (2018)AFWLR (PT 956) among others are very constructive in this regard. In fact, it has been drawn to the extent that it can not be granted upon admission by the defendant.
Hence, I feel, with all due deference, that the position adopted by the court in granting a declaratory relief based on the statement on oath was improper.
*settled
*very instructive.
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