Alhaji Ibrahim Abdullahi V. Military Administrator & Ors (2003)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A. 

In the Kaduna State High Court of Justice, in the Kaduna Judicial Division, sitting in Kaduna, the applicant commenced an action by originating summons supported by a 37 paragraph affidavit to which were exhibited twenty six documents, marked as exhibits IA1 – IA26. The respondents did not contest the suit. Apart from filing a joint memorandum of appearance and making one appearance the respondents did not respond to the affidavit in support of the summons nor did they appear to make a speech or speeches in rebuttal.

Learned trial judge, Makeri, J., in a reserved and considered judgment, delivered on 30th June, 2000 dismissed the suit in its entirety. Being dissatisfied with the decision of the learned trial judge dismissing his claim, the applicant filed a notice of appeal containing six winding and verbose grounds of appeal. With leave of the court granted on 15th March 2001, applicant filed two additional grounds of appeal.

At the hearing of the appeal, Mshelia, learned counsel for applicant (hereinafter referred to as the appellant) adopted and sought reliance on the appellant’s brief prepared and filed by I.N. Buba of counsel which was deemed filed with the order of court granting extension of time on 29th October, 2001. Learned counsel further informed the court both orally and in appellant’s brief to the effect that grounds 1, 3 and 5 of the original grounds of appeal are abandoned. Learned counsel thereafter related additional ground 1 to issue 1 while relating original grounds 2, 4 and 6 as well as additional ground 2 to issue 2. Thereafter learned counsel for appellant, Mshelia, urged upon the court to allow the appeal. It seems from what she did issue 3 does not derive from any of the grounds of appeal. Learned counsel in relating the grounds of appeal to the three issues framed failed to relate any ground or grounds to issue 3. Issues must be framed from or need to encompass grounds of appeal- Idiaka vs. Erisi (1988) 2 NWLR (Pt.78) 563. Since an issue must derive from ground or grounds of appeal and the appellant herein having exhausted his grounds of appeal by respectively relating them to issues 1 and 2, after abandoning 3 of them there appears to be no other ground left to sustain appellant’s issue 3.

In the appellant’s brief of argument, however, it is observed that the additional ground 2 was expressly related to issue 3 in this appeal. In the circumstance, I ex cautela abudanti assume that appellant does not intend to abandon his issue 3. The impression created in the oral submission is a mere oversight arising from pressure of work which is bound to occur in the course of duty of an advocate. It is a mere lapse of tongue to wit lapsus linguae. I for this reason overlook the same. The appellant’s 3 issues as formulated in his brief of argument are deemed to be calling for consideration in this appeal. The appellant therefore has three issues for consideration in this appeal.

The appellant, having orally and in writing in his brief of argument, abandoned original grounds 1, 3 and 5, the 3 grounds are hereby struck out.

Respondents acted to character. Just as they failed to defend the action in the trial court, they failed to appear in this court, throughout the proceedings resulting in the determination of the appeal not to talk of filing their brief or briefs of argument. They did more importantly, not file their joint or respective briefs of argument. The appeal is, therefore, being decided solely on the appellant’s brief of argument.

In the appellant’s brief, the following Issues were formulated:

“(i) Did the appellant prove his case in the lower court on the balance of probability?

(ii) Did the lower court act as an independent and impartial arbiter having regards to the facts and evidence before it?

(iii) Is the lower court right in refusing to accept the unchallenged and uncontradicted evidence of the appellant?”

Before embarking upon consideration of the argument canvassed in support of the respective appellant’s issues, in the appellant’s brief, I proposed to state however succinctly the facts of this case. The appellant was invited to retire from the service of the Kaduna Civil Service. When he failed to accede to the request he was retired with effect from 31st March, 1998 on the ground that he had served for a period of 35 years. The Kaduna State Civil Service Commission apparently predicated its decision to retire the appellant from its service after serving for 35 years and before attaining the age of sixty years on Implementation Guidelines on the Civil Service Reforms of 1988 which are made in pursuance of Civil Service (Reorganisation) Decree 1988 which enactment had been repealed with effect from 1st April, 1995. The appellant received a letter Exhibit IA7, stopping his salary and requesting him to handover government property in his possession, from Director of Personnel Management of the Ministry he was serving at the material time. Appellant acting on the strength of the letter, Exhibit IA7 as well as exhibit IA13, IA14, IA15, IA16, IA17 went to court by way of originating summons claiming as follows:-

“1. A declaration that the purported retirement of the Plaintiff by the 1st to 5th defendants is contrary to Decree 102 of 1979 and is illegal, null and void.

2. A declaration that the stoppage of the plaintiffs salary and emoluments with effect from March 31st, 1998 is illegal, null and void.
3. A declaration that the breaking into the Plaintiffs office and the removal of his items therefrom by the 6th Defendant on April 29th 1998 is illegal.
4. A declaration that the plaintiff is entitled to consideration for and promotion to grade level 16 by the 1st, 2nd, 4th and 5th Defendants. In the alternative: that the emoluments and benefits accruing to a Grade Level 16 officer accrue to the plaintiff and same be made and paid personal to him.
5. An order of immediate reinstatement of the plaintiff to his office by the Defendants.
6. An order that all the emoluments of the Plaintiff with-held since March 31st 1998 till his reinstatement in office be paid to him.
7. An order that the 4th Defendant consider and effect the over due promotion of the plaintiff to a Grade Level 16 officer with its attendant emoluments or make payment of same personal to him.
8. Damages in the sum of N=50,000.00 against the 6th Defendant for breaking into the plaintiffs office.
9. The return of the items removed from the plaintiff’s office by the 6th Defendant or damages in the sum of N=10,000.00 being the cost of replacing same.”

The appellant caused the originating summons to issue for the determination of the following issues or questions:

“For the determination of the following questions:

a. Whether Decree 102 of 1979 makes it mandatory for civil servants as the Plaintiff to retire from service after serving for 35 years only?

b. Whether Decree 102 of 1979 precludes the plaintiff from remaining in service after serving for 35 years and before attaining 60 years of age?

c. Whether the plaintiff can be retired from service on the basis of the Implementation Guidelines on the Civil Service Reforms of 1988 which are pursuant to and founded upon the Civil Service (Reorganisation) Decree 1988 which was repealed on 1st April, 1995?

d. Whether the Defendants can stop the payment of the Plaintiff s salary and emoluments and break into his office without any authority whatsoever?

e. Whether the Plaintiff was entitled to promotion in 1994 based on the Implementation Guidelines on the Civil Service Reforms and thereafter entitled to promotion in 1998 on the 3 year rule in operation before the said Guidelines came into effect?”

The originating summons was supported by affidavit to which 26 documents were exhibited. Learned counsel for appellant addressed the trial court which, after considering the materials placed before it, in a reserved and considered judgment, refused all the reliefs sought by the appellant.

In arguing appellant’s issue 1, his learned counsel, in the appellant’s brief, contended thus:

“The appellant filed a 37 paragraph affidavit and supported all the averments with documents which were marked as exhibits IA1 – IA26. It is from the affidavit evidence on oath and the documentary evidence equally exhibited on oath that counsel for the Appellant addressed the lower court and asked for judgment for the appellant. The evidence of the appellant was unchallenged, undisputed, uncontroverted and uncontested either on facts or on legal arguments.

The law has been settled for ages and beyond doubt that there is no absolute standard of proof in civil cases. In determining the standard of proof it is necessary to relate the case made by the plaintiff to that of the Defendant. In a situation where a party leads evidence and such evidence in unchallenged and the evidence is capable of belief the court should accept and act on such unchallenged evidence. Unless, of course, if the evidence is anachronistic and incapable of being believed. (See the case of CALABAR EAST CO-OP V. IKOT (1993) 8 NWLR (Pt.311) 324 at p.335, paras. C – D. See also OKULAJA V. HADDAD (1973) 11 S.C. 357 p.362; also ADEL BOSHALI V. ALLIED COMMERCIAL EXPORTERS LTD (1961) 1 All NLR 917.

Where the evidence of a party is neither challenged nor controverted, the onus of proof is discharged on a minimal proof. See the case of FCDA v. NAIBI (1990) 3 NWLR (Pt.138) 270 at p.281, paras. D – E. The Plaintiff/Appellant had before the lower Court in support of his summons filed a 37 paragraph Affidavit and 26 exhibits. These all bore relevance to the reliefs sought and were not in themselves incredible, the trial judge has no option but to accept it. See OGWURU V. CO-OP BANK OF E/N LTD (1994) 4 NWLR (Pt.365) 685 at 699, paras. B – C; MIA & SONS V. FHA (1991) 8 NWLR (Pt.209) 295 at p.313, Paras E – H.

The only instance where the Plaintiff may lose his case where the defendant has not appeared to challenge or contradict the evidence tendered is where such evidence does not support the facts pleaded or where the statement of claim is contradictory or defective. See NWOGU V. NJOKU (1990) 3 NWLR (Pt.140) 570 at p.581, para. D. See also NWABUOKU OTTIH (1961) 2 SCNLI 232.

We respectfully submit that the evidence of the plaintiff/appellant supported the issues raised in the summons and that his claim was neither contradictory nor defective and so the trial court had No OPTION but to have accepted the evidence. This is the lower court failed to do and thereby occasioned a grave miscarriage of justice to the appellant.

In the circumstances the court of Appeal is urged to answer issue 1 in the affirmative, and hold that the appellant proved his case in the lower court on the balance of probability and affortiori allow the appeal on that ground.”

Learned trial judge before resolving the issue canvassed by the learned counsel for appellant before him clearly demonstrated, In my respectful opinion, that he properly appreciated the duty, in the circumstance of this case, placed upon him. In this connection, learned trial judge rightly reasoned as follows:-

“I wish to state right from the word go that in civil trials generally under section 137 of the Evidence Act the burden of proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side regard being had to carry presumption that may arise on the pleadings. It is therefore incumbent on the plaintiff to lead credible evidence in proof of the reliefs sought despite the fact that the defendants did not respond.

This is because when a plaintiff adduces oral evidence which establishes his claim against the defendant in the terms of his writ, and that evidence is not resulted by the defence, the plaintiff is entitled to Judgment.

See: NWABUOKU V. OTTIH (1961) 2 SCNLR 232; (1961) ALL NLR 487.

However, it is not a general rule that whenever the evidence tendered by the Plaintiff is unchallenged or uncontradicted, the plaintiff is automatically entitled to Judgment. The evidence adduced must bear relevance to the facts pleaded and the issues joined. For as Kolawole JCA said at p.581 Paras. A – B.

It must be remembered that a plaintiff may lose his case where the defendant has not even appeared to challenge or contradict the evidence tendered if such evidence does not support the facts pleaded or where the statement of claim itself is contradictory or defective.

See: NWOGU V. NJOKU (1990) 3 NWLR (Pt.140) 570 at 573.”

Learned counsel for appellant conceded in his argument on issue 2 that the opinion represented proper or correct position of the law.

The learned trial judge, in the circumstance, properly directed himself, to my mind, on the issue. The burden is, therefore, on the counsel for the appellant to show, in his brief where learned trial judge derailed or went wrong. It is respectfully grossly inadequate for learned counsel for appellant, after reciting the hallowed principle of law to be followed by the learned trial judge, who rightly, in my view, adverted correctly his mind to them in his judgment to simply submit tersely as follows:

“We respectfully submit that the evidence of the plaintiff/appellant supported the issues raised in the summons and that his claim was neither contradictory nor defective and so the trial court had no option but to have accepted the evidence.”

It is not for this court nor any other court to scrounge for error in the judgment of the learned trial judge and scurry for answer or resolution to them. It is not for this court to suo motu make speculative submission on behalf of the appellant nor any other party and resolve such speculation or academic issue itself. It is not for this court to raise the question of applicability or otherwise of section 4(1) of Pension Act Cap.346 of the Laws of the Federation of Nigeria, 1990. Nor is it the function of this Court or any other Court to investigate relevance of Federal Circular No. SGF .11/Vol.III/T/26 of 20th February, 1997 without argument. A declaration is not granted on admission of parties but on argument and evidence.

I cannot answer issue 1 in the affirmative and hold that appellant proved his case on balance of probability and allow the appeal a{fortiori as urge upon me by learned counsel for appellant otherwise I would equally be charged in the manner the learned trial judge was accused of descending “in white robes through the clouds as an arbiter” by the learned counsel for appellant.

Appellant’s issue (i) is academic or speculative. Appeal court will not give advisory opinion on a matter either. The court’s function is to deal only with real or live issues of fact and not with fanciful or speculative ones: Akeredolu v. Akinremi (1986) 2 NWLR (Pt.25) 710, 725; Eperokun vs. University of Lagos (1986) 4 NWLR (Pt.34) 162, 177; Union Bank of Nigeria Limited v. Edionsere (1988) 2 NWLR (Pt.74) 95, 105; and Nwobosi v. African Continental Bank Ltd (1998) 6 NWLR (Pt.404) 658, 681.

But if I must answer the question, the respondents did not state in the correspondence conveying appellant’s retirement to him that he was retired on the strength of the provisions of section 4(1) of the Pensions Act, Cap.346 of the Laws of the Federation of Nigeria, 1990. The Civil Service Commission’s letter communicating Appellant’s retirement to him, exhibit IA16 did not state that appellant was retired on the provisions of the Pension Act Cap.346. Rather it categorically stated that the retirement was in accordance with the provisions of Implementation Guidelines on the Civil Service Reform of 1988 and Establishments Circular ED.1/1996, NO.S/PEN.24/1/320 of 14th January 1996. The letter, addressed to the Commissioner for Water Resources and Rural Development, reads inter alia as follows:

“RE SUBMISSION OF PETITION

BY IBRAHIM ABDULLAHI – CHIEFWORKS SUPT.

With reference to your letter No. MWRRD/CON/254/T/V.I/96 of 11th May, 1988, I am directed to inform you that the Commission has carefully studied the officer’s petition and has approved his retirement from service with effect from 5th December, 1997 in accordance with the provisions of Implementation Guidelines on the Civil Service Reforms of 1988 and Establishments Circular ED.1/1996, No. SIPEN.24/1/320 of 14th January 1996.

2. This letter is copied to the Secretary to the State Government for information and awareness.”

The Honourable Commissioner charged with responsibility for the Ministry for Water Resources and Rural Development sent the Civil Service Commission’s letter to the appellant by a covering letter MWRRD/PER/504/T/V.I/23. The letter also reads partly as follows:

“RE: RETIREMENT FROM SERVICE

I had earlier, on receipt of your petition, passed same to the Civil Service Commission (CSC).

The Commission has responded in its letter No. 01240/Vol.I/350 dated 8th July, 1998.

I attach the letter for your information. Attached also is another copy of the letter from Government House, Kaduna No. GH/KD/S/64/S/1 of 25th June, 1998.”

Clearly neither letter spoke about S.4(1) of the Pension Act Cap.346. And the two letters recited inter alia immediately above effectively retired the appellant from the service of the Kaduna State. The first letter was the letter retiring him from the service by the appropriate body with authority to do so while the second letter brought the exercise to the appellant’s attention. Any document alleging retirement of the appellant under S.4(1) of the Pension Act Cap.346 is purely advisory. The Civil Service Commission solely vested with authority or discretion to accept or reject the pieces of advice tendered to it did not accept retirement of appellant under the Pension Act Cap.346. It follows that the Civil Service Commission by keeping mute on the question of Pension Act Cap.346 impliedly refused to act on the said enactment.

Exhibit 17, a letter written by the Director General on behalf of Commissioner for Water Resources and Rural Development with reference No. WRRD/PER/504/T/V.I/15 dated 24th April 1998 making reference to Pension Act is irrelevant. The letter is copied immediately hereunder:

“RE: RETIREMENT AND HANDING, HANDING OVER OF OFFICE

Subsequent to ours REF No. WRRD/PER/504/T/Vol/1/11 dated 31st March, 1998 and in accordance with the provisions of section 4 of the Pension Decree No.1 02 of the year 1979 you were due for retirement by December, 1997. Up to now, you have refused to submit your retirement notice accordingly.

I am directed to ask you to handover Your Office latest by Monday, 27th day of April, 1998. An advance copy of the handing over note should reach my office by 10.00a.m. of the same day.”

It is not only irrelevant but also premature in the sense that the letter was written on behalf of a person or by a person who has no constitutional power to retire the appellant. It is a mere irritant emanating from an exuberant officer and should or ought to be treated with contempts it deserved especially so when it pre-dated serving the Civil Service Commission’s letter, exhibit IA16 on the appellant on 23rd July, 1998.

As I have earlier observed, the Civil Service Commission retired the appellant from the service by virtue of Implementation Guidelines on the Civil Service Reforms of 1988 and Establishments Circular ED.1/1996 No. S/PEN/24/1/320 of 12th January 1996 made pursuance of Civil Service (Re-organisation) Decree 1988 which had been repealed with effect from 1st April 1995. The reform carried out in the civil service under the Implementation Guidelines of the Civil Service Reform of 1988 subsists notwithstanding the repeal of the Civil Service (Re-organisation) Act, Cap.55 of the Laws of the Federation of Nigeria, 1990 on 1st April 1995.

An action taken or an operation carried out under an enactment subsists or is unaffected after the legislation is repealed by dint of S.6(1)(b) of the Interpretation Act, Cap.192 of the Laws of the Federation of Nigeria, 1990. It survives inspite of the repeal of the law under which the action was taken. Section 6(1)(b) of the said Act Cap. 192 reads as follows:

“6(1) The repeal of an enactment shall not-

(a) x x x x x x x x x x x x x x x x x x x x

(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment.”

See Afolabi v. Government of Oyo State (1985) 2 NWLR (Pt.9) 734; (1985) 9 SC; Uwaifo v. Attorney General Bendel State (1982) 7 SC 124; (1982) NSCC 221 and Lipede v. Sonekan (1995) 1 NWLR (Pt.374) 668. In case the Implementation Guidelines on the Civil Service Reform, 1988 as well as Establishments Circular ED.1/1996 No. S.PEN.24/1/320 of 12th January 1996 are not considered as operation of the law but as subsidiary legislation I think the two documents are equally protected or not repealed simply because the Act itself is repealed. See section 4(2)(c) of Interpretation Act Cap.192 generally.

I answer appellant’s issue 1 which is in any case academic in the negative and find ground I of the original ground of appeal unmeritorious. It fails and is dismissed by me.

On issue (ii), appellant’s grouses are to the effect that the lower court ought not have made a case for the respondents who failed to depose to a counter affidavit nor went to trial court to make presentation and representation. Learned counsel submitted that the lower court was entitled to look at the evidence to ensure whether it was credible or not and whether it bears relevance to the issues joined. Learned counsel further submitted that the learned trial judge was not a party to the case and should have remained independent and impartial. He relied on FCDA v. Noibi (1990) 3 NWLR (Pt.138) 270 at 283 for the proposition of the law. Appellant’s learned counsel contended that appellant made a case that exhibits IA15, IA16, IA17 and IA20 violate Pensions Act, Cap.346 under which the respondents purported to have retired the appellant. He contended that he made a case that Exhibit IA8 was amended by adding words that were not there. Learned counsel contended further that the appellant made a case before the lower court that proper procedure was not followed. It was then submitted that the lower court acted as if it were the respondents and based its decision on exhibits 1A8, IA15, IA16 and IA17 when it was clear that all the documents were personal opinions of the respondents which the respondents did not come to court to articulate by way of defence. Learned counsel concluded that learned trial judge had no basis making such findings and conclusions for the respondents.

Learned counsel for appellant was adroit. He was however not candid. Exhibits 1A15, IA16, IA18, LA13, IA17, IA14, IA16 and IA20 are all public documents which were produced in evidence by the appellant himself. To validly produce in evidence a public document the appellant is required to tender a certified true copy thereof which is not the case here. All these documents are consequently inadmissible and ought to have been expunged by the learned trial judge. See Yero vs. Union Bank Plc. (2000) 5 NWLR (Pt.657) 470, 478 – 9; section 111 of the Evidence Act Cap.112 of the Laws of the Federation of Nigeria, 1990. Having produced those documents he cannot turn around to blame the learned trial judge for considering them.

Be that as it may, it is trite that appellant as the applicant in this case has a burden of proving his case on balance of probability and cannot rely on the weakness in the respondent’s case nor their failure to appear to defend the suit. But if there are material in the respondent’s case which supports his case, his case can seek succour from the respondent’s case. In the instant case, the respondents did not defend the action. They therefore did not make any representation or presentation before the court which could have energised appellant’s case. The learned trial judge as he was entitled to do went ahead to summarize and evaluate the evidence presented before him by the appellant by ascribing probative value to them. Learned counsel for appellant is not challenging the ascription of probative value or the evaluation of the evidence. Rather learned counsel for appellant is challenging propriety or otherwise of the learned trial judge proceeding to make far reaching findings and evaluating the evidence led by appellant when there was no other evidence on the other side of the scale. It is not often that when the defendants, like the respondents in the instant case, did not join issue and failed to adduce evidence that judgment must be awarded to the plaintiff as a matter of course. In such circumstance, it is still open to the trial court to evaluate the evidence and satisfy itself, as rightly conceded in the appellant’s brief, that the plaintiff, on his own showing, has established his claim on credible evidence. The trial court is also entitled to scrutinize the evidence adduced and ascertain whether it bears relevance to the facts pleaded and the issues joined. See Nwabuoko v. Ottih (1961) All NLR 487; (1961) 2 SCNLR 232, Nwogu v. Njoku (supra) cited in the appellant’s brief. See also H.A. Toriola & Another vs. Mrs. Olusola Williams (1982) All NLR 88, 205, (1982) NSCC 187, 198 where Supreme Court per Idigbe, JSC said:

“This submission overlooks the position in which the Appellant placed themselves by resting their case on that of the Respondent i.e. by in effect submitting the Respondent as plaintiff failed to make out a prima facie case and by electing in consequence not to call evidence in support of their own case. The position in such a situation is of course, that the Appellant are bound by the evidence in support of the case for the Respondent qua plaintiff and the case must be dealt with on the evidence as it stands.” (underlining mine)

See Laurie vs. Reglan Building Co. Ltd (1942) 1 KB 152, 156 and Parry v. Aluminium Corporation (1940) WN 44,146. The respondents are bound by the evidence adduced by the appellant and the case must be decided on the evidence adduced by the appellants which principle the respondents are not disputing. The learned trial judge decided the case on the evidence proffered by the appellant and he found that the evidence was not sufficient to tilt the scale in favour of the appellant. The learned trial judge does not deserve the vilification or accusation of acting as if he were a party to the suit while in pursuit of his legitimate assignment as a trial judge. All the documents the appellant accused him of examining were produced by the appellant and not the trial judge. They were at liberty to withhold them. But since they failed to do so, it is not for the learned trial judge to suppress them. Appellant cannot turn a summersault by in one breath urging the court to use those documents and when the decision was not favourable to him to blame the court for looking at them.

For the foregoing reason, I answer appellant’s issue (ii) positively. Grounds 2, 4 and 6 of the original grounds of appeal from which the issue derive fail and are dismissed by me.

On issue (iii) which is distilled from additional ground 2, learned counsel for appellant submitted in the appellant’s brief of argument as follows:

“The appellant humbly adopts its submissions on issue 1 and further adds that it is the law that the courts are not Fathers Christmas and cannot grant a party a relief that a party has not sought. In the same vein the courts are not avaricious, greedy, parsimonious and tightfisted monsters denying to a party a relief that has been sought and supported by credible Evidence. A fortiori, a court apart from being bound to accept and act upon an uncontested, unchallenged and uncontroverted credible evidence is equally altruistically bound to be bountiful and generous, and munificent as far as the Evidence is credible and supports the reliefs claimed. The Court of Appeal is urged to hold on issue 3 that the lower Court was not right in refusing to accept the unchallenged and uncontradicted Evidence of the appellant and also to allow the Appeal on this issue.”

Since I have already exhaustively discussed issue (i) I adopt my reasoning under that issue for this issue. Contrary to the appellant’s beseach I am unable to hold that the trial court was not right in refusing to accept the unchallenged and uncontradicted evidence of the appellant. I am of the respectful view that the evidence presented to or placed before the court failed to establish that the Implementation Guidelines of Civil Service Reform of 1998 and Establishments Circular upon which the Civil Service Commission based its decision to retire appellant, after working for 35 years did not apply to him. That was the crux of the case.

I observed while dealing with issue (i) that appellant’s claim are mainly declaratory which are not granted on admission or submission of one of the parties. In other words failure of the respondent to defend the action does not avail the appellant. The burden of proof is still on him because a declaratory relief is not granted on admission of a party or in default of defence but on argument as well as evidence. I am strengthened in this view by the Supreme Court decision in Bello v. Eweka (1981) 1 SC 101, 120-2:

“This is the more important as this is a declaratory action, and declaratory judgment are limited by discretion of the court:

“In my opinion” said Lord Sterndale, M.R., “the power of the Court to make a declaration, where it is a question of defining the rights of two parties is almost unlimited; I might say only limited by its own discretion. See Hanson v. Radcliffe Urban Council (1992) 2 Ch. 490, 507. ”

Infact, whether or not the point is taken by the Defendant, the court is still not bound to make a declaration once it does not consider it a proper case in its discretion to make one. Markwald v. Attorney General (1920) 1 Ch. 348……………..

See also Wallersteiner v. Moir (1974) 3 All ER 217 per Buckley L.J. where the learned Lord Justice said:

“It has always been my experience and I believe it to be a practice of long standing that the court does not make a declaration of right either on admission or in default of pleadings …….but only if the court was satisfied by evidence.”” (underlining mine)

See also Metzger and others v. Department of(Health and Social Security (1977) 3 All ER 444, 451 where Megarry, V.C. said-

“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 submissions of the parties. There are no declarations without argument, that is quite plain.” (underlining mine)

In the circumstance, I answer issue (iii) positively and the ground of appeal from which it was framed fails and is dismissed. All the issues having been resolved against the appellant and all the grounds of appeal having failed and dismissed the appeal itself fails and is dismissed by me. The order as to costs normally follows the event. But, in the circumstance of this appeal, I will not make any order as to costs.

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Other Citations: (2003)LCN/1336(CA)