KANO STATE GOVERNMENT & ANOR. vs. KASMAL PROPERTIES LTD.(2022)LCN/16982(CA)
PRINCIPLE:
“As rightly pointed out by the Appellants, the three declaratory reliefs sought by the Respondent were premised on the following facts:
1) That it was appointed as an agent to manage the property of the Appellants at No. 1228 Bishop Oluwole Street, Victoria Island.
2) That there was a promise made orally that the Appellants would execute a Deed of Lease of the property for a period of 25 years in its favour at an agreed rent and,
3) That upon recovery of possession of the property from its former occupier (the Respondent’s tenant), the Respondent took possession, paid rent for the first five years, by cheque, which the Appellants were at liberty to cash, and forwarded a draft deed of lease agreement to the Appellants but it was not executed.
The Respondent thereupon sought specific performance of execution of the draft deed of lease in respect of the said property.
Expounding on the nature of a declaratory relief, the Supreme Court, per Ariwoola, JSC, in U.T.C. (Nig) Plc v. Peters (2022) LPELR-57289 (SC) at page 10, said: “Declaratory claims are said to be invitations to the Court to make pronouncement on the legal position of a state of affairs and it is by itself not enforceable in law. Declaratory judgment therefore is a remedy for determination of a justifiable controversy where the plaintiff is in doubt as to his legal rights. It is granted as a judicial discretion only in circumstances in which the Court is of the opinion that the party seeking it is entitled, when all facts are taken into account.”
A fundamental requirement of a declaratory relief is that the claimant must satisfy the Court that he is entitled in law to the relief claimed. Therefore, a declaratory relief will be granted where the claimant is entitled to relief in the fullest meaning of the word: Chukwumah v. Shell Petroleum (Nig) Ltd. (1993) LPELR-864 (SC). It follows that the success of a declaratory relief depends entirely on the strength of the claimant’s own case, and not on the weakness of the defence, if any, although the claimant may take advantage of the defendant’s evidence, where it supports his case, after he might have proved his case as required by law. The Supreme Court, per Peter-Odili, JSC, in Adamu v. Nigerian Airforce & Anor. (2022) LPELR-56587 (SC) at page 13, emphasized that: “It needs be brought to the fore that declaratory reliefs are not granted based on the lack of credible evidence by the defence but on the convincing, satisfactory and credible evidence by the claimant. Assuming that the Respondents’ evidence were not satisfactory enough, that is not a pointer that the declarative reliefs should be granted.” (Emphasis mine).
That means, even in default of defence in respect of such a claim, the claimant must show that he is entitled to judgment. See Maja v. Samouris (2002) LPELR-1824 (SC); Martchem Industries (Nig) Ltd. v. M.F. Kent West Africa Ltd. (supra).
The learned trial Judge found that, pages 218 – 219 of the Record of Appeal:
“The Court agrees that certain salient facts were elicited under cross-examination which if this was a claim in law as opposed to equity might have held water but this a claim in equity.
The facts are as follows:
(i) There was no other agreement save for the letter Exhibit C1 which authorized the Claimant to act as agent.
(ii) There was no proof of the cheques which were allegedly paid or given to the Defendants as they were alleged to have been lost.
(iii) The Claimant could not produce minutes of the meetings wherein any other issue was agreed to the parties.
(iv) The Claimant is still holding on to the property even after evicting the tenants.
(v) There was no evidence before the Court of any payment either to the Police or to a lawyer.
(vi) The Claimant was not the person allegedly registered by the Kano State Government.
(vii) There is no proof of the registration of the Claimant.
(viii) There was no covering letter or correspondence sending the draft agreement/cheques to the Defendants.
(ix) Claimant has no acknowledgment of letter dated 6th October, 2010, Exhibit C5.
(x) Claimant did not have a copy of the advert for the sale of the property which led to him filing the form (Exhibit C4).
(xi) Claimant did not have any order of Court mandating it to enter into the property to evict the tenants based on the Suit No. FHC/CS/1048/2012 which he instituted and expended part of the N50,000.00 (Fifty Million Naira) on.
(xii) There was no receipt of the sum or sums of N50,000,000 (Fifty Million Naira or any sum from TRLP partners.
(xiii) The N50 Million Naira never passed through any financial institution.
(xiv) The Claimant did not have a copy of the acknowledgement of the expression of interest form.
(xv) CW2 did not attend the meeting of 10th September, 2010 where she claimed it was discussed and agreed that the property will be given to the claimant.
(xvi) She also did not have the minutes of the meeting of the said date.
(xvii) That the claims of the Claimant are manifestly unreliable.”
By these findings the learned trial Judge clearly stated that, while she agreed that these facts were elicited under cross-examination if the Respondent’s claim was in law as opposed to equity, the said facts might have held water. But because the Respondent’s claim was in equity, the trial Court would not accord the findings any importance. Notwithstanding these interesting findings, including that the claims of the Claimant, the Respondent herein, are manifestly unreliable, the learned trial Judge went on to find and hold, page 220 of the Record of Appeal:
“The question is, Is there a valid contract between the parties herein? It is clear from the evidence before the Court that the contract between the parties was one that was partly oral and partly written, pursuant to a promise to lease the premises the Claimant undertook to recover possession by ejecting the occupants in the premises situate at 1228, Bishop Oluwole Street, Victoria Island, Lagos (as per letter Exhibit C1).
Exhibit C1 letter of authority only referred to the recovery of the premises there was no written reference to the understanding between the parties as regards the grant of a 25/30 year lease in favour of the Claimant.” (Emphasis mine).
Exhibit C1, the only written document between the parties, was reproduced at page 27 of the Record of Appeal. It reads:
“LETTER OF APPOINTMENT TO ACT AS AGENT FOR THE GOVERNMENT OF KANO STATE TO MANAGE PROPERTY NO. 1228 BISHOP OLUWOLE STREET VICTORIA ISLAND, LAGOS
I have been directed to inform you that the Government of Kano State hereby appoints you as its agent for the purpose of managing its property described as No. 1228 lying and situate at Bishop Oluwole Street Victoria Island, Lagos.
You have the authority of Kano State Government to ensure that vacant possession of the property in question is delivered to it immediately, please.
(signed)
Hafsat Yahaya Sani
Principal State Counsel
For Hon. Attorney General/Comm. for Justice.”
The learned trial Judge harped on the fact that the Appellants gave no evidence in proof of their case, which meant that the evidence for the Respondent was not controverted, and went on to hold, page 227 of the Record of Appeal:
“Exhibit C1 (the letter of authority) the Claimant was definitely appointed to recover possession and a letter was written to that effect which to the mind of the Court looking at the case wholistically tends to be believable as there was no mention of consideration in the said suit. Was the eviction process meant to be gratis – it is more plausible that there was this arrangement of a lease being granted even though the Court cannot understand why there was no attempt to put something down in writing by the Claimants.
It is trite that there was no other consideration on the face of the letter but the Claimants say the agreement to execute lease was the consideration that was why there was no other consideration stated on the face of Exhibit C1 dated 19th July, 2012.
…
The Court finds that the oral evidence proffered does not contradict or alter Exhibit C1. In fact it fills in the missing portion of what is the consideration? It is a separate collateral contract in line with Section 128 (1)(b) Evidence Act.”
Now, Section 128(1)(b) of the Evidence Act, 2011 provides:
(1) When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence. Provided that any of the following matters may be proved –
…
(b) the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them;”
(Emphasis mine).
It seems to me that the learned trial Judge, with respect, engaged in conjecture and assumptions, to arrive at his conclusion on the transaction between the Appellants and the Respondent.
Fundamentally, a Court is restrained from reading into a document words that are not found therein. In Northern Assurance Co. Ltd. v. Wuraola (1969) LPELR-25562 (SC) at pages 10 – 11, the Supreme Court emphatically pronounced: “It is trite law that in the construction of documents the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should NOT be imported into them.”
(Emphasis mine).
See also Union Bank Plc v. Ozigi (1994) LPELR-3389 (SC); Gana v. SDP (2019) LPELR-47153 (SC).
A Court cannot by conjecture fill in imagined blanks into any document. And, I use the words, imagined blanks, intentionally. In the first place, it must be restated with emphasis that a claimant must rely on the strength of his own case in seeking declaratory reliefs, more so in matters relating to land or leases, as found herein. See Osuji v. Ekeocha (2009) LPELR-2816 (SC); Matanmi & Ors. v. Dada & Anor. (2013) LPELR-19929 (SC); Adamu v. Nigerian Airforce & Anor. (supra). It is irrelevant that the defendant has failed to challenge the evidence of the claimant by abandoning his defence, or that the defendant’s defence is weak. A Court cannot fill in any blanks or gaps by speculation, conjecture or assumptions. See Orhue v. NEPA (1998) LPELR-2758 (SC); Awolola v. Governor of Ekiti State & Ors. (2018) LPELR-46346 (SC).
The learned trial Judge acknowledged that, on the evidence adduced, the claims of the Respondent were manifestly unsupportable, but said it was a claim in equity, more so, when the Respondent had not proffered any evidence. But equity does not act in vain and should not be taken for granted. It must be buttressed or grounded on solid facts that would induce the Court to act in favour of the party seeking its aid. See Reichie v. Nigeria Bank for Commerce and Industry (2016) LPELR-40051 (SC).
It is a settled principle of equity that where a person has given his word to another upon which that other has taken some material or substantial steps, equity will insist that the man should keep his word. See Owosho v. Dada (1984) NSCC 568 at 580. In his concurring opinion in Adigun v. Ibadan North Local Govt. (2016) LPELR-41385 (CA) at page 36, Okoronkwo, JCA, (of blessed memory) said: “Since the days of Walsh vs. Lonsdale (1882) 21 Ch.D 9, the law treats agreement for a lease as good as a Formal Lease and so whenever there is a semblance of agreement particularly where supported by some consideration or act of part performance, the law since the intervention of equity will treat such transaction as a lease and will in appropriate case decree specific performance.”
In the instant appeal, however, there were no facts upon which equity could act in favour of the Respondent nor is there any law here in aid of which equity can act to grant the Respondent’s declaratory reliefs.
The learned trial Judge attempted to fill in imagined gaps in Exhibit C1 by speculating on the fact that the alleged oral agreement for the lease must have been the agreed payment for the eviction of the 1st Appellant’s tenant at No. 1228 Bishop Oluwole Street, since the eviction could not have been done at no cost to the Appellants. But it is speculative to conclude that a lease for 25 years must have been the agreed return for eviction of the Appellants’ recalcitrant tenant. On the flip side, it could also be speculated that the Respondent was otherwise compensated or paid separately for their services in evicting the said tenant.
Exhibit C1 made no reference to a further agreement, whether for a lease or otherwise. No minutes of the alleged meeting held on 18/7/2012 that CW2 said she attended where the alleged lease was agreed on, was tendered. There was nothing tendered to remotely show that any such agreement was made. A claim that there was an agreement for a lease of 25 years and the sum of N80,000,000.00 paid for the first five years, with absolutely no document in proof of such assertions, sounds completely farfetched to me. There was absolutely nothing to prove that the cheque alleged to have been issued for the amount of N80,000,000.00 was ever cashed. No statement of account of the Respondent was tendered in proof that such a huge amount left the account of the Respondent to the 1st Appellant. No cheque numbers were pleaded and cheque stubs tendered in proof that such cheques were at all issued. Further, as found by the learned trial Judge, there was absolutely nothing to prove that a kobo of N50 million, alleged to have been spent by the Respondent in evicting the tenant, was received anybody, including the Law Firm, TRLPLAW, nor was any record of how it was spent placed before the lower Court. There was absolutely nothing to show that the alleged N50 Million Naira passed through any financial institution. Declaratory reliefs, followed by an order for specific performance ought not be granted upon such lacklustre and shallow evidence.
A defendant who has offered no evidence, could still have judgment in his favour if the claimant is unable to prove an essential element of his claim. See Bronwen Energy Trading Ltd. v. Oan Overseas Agency (Nig) Ltd. & Ors. (supra); In Martchem Industries (Nig) Ltd. v. M.F. Kent West Africa Ltd. (2005) LPELR-1842 (SC), the Supreme Court, per Oguntade, JSC, made this point clear, at page 13: “It is certainly not in consonance with the law to say that in every case in which the evidence called in support of the plaintiff’s case is unchallenged, judgment must be given in favour of the plaintiff. On the contrary, it is possible and there are several known examples that evidence called in support of plaintiff’s case even if unchallenged, may still be insufficient to sustain plaintiff’s claims. In Alhaji Garba G. Haruna v. J. D. Salau (1998) 7 NWLR (Pt. 559) 659, I said concerning unchallenged evidence: “The argument that because the plaintiff’s evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak and so discredited under cross-examination that it is unnecessary for the defendant to testify. It is also trite that the evidence given by the plaintiff even if unchallenged, may still be insufficient to sustain the claim made by the plaintiff. In the case at hand, no reasonable Court or Tribunal could have given judgment in favour of the plaintiff when the plaintiff had by his own mouth given evidence that he agreed to sell his property to the defendant and that he had been paid the agreed purchase price.”
(Emphasis mine).
Let me reiterate that declaratory reliefs are not granted based on the lack of credible evidence, or no evidence, or even admissions by the defence but on convincing, satisfactory and credible evidence by the claimant. See Adamu v. Nigerian Airforce & Anor. (supra); Chukwumah v. Shell Petroleum (Nig) Ltd. (supra). In my considered view, the Respondent failed to prove their case at the lower Court by any credible evidence. There was therefore no basis for the award of the declaratory reliefs and the order for specific performance made in favour of the Respondent. It is on this ground that I resolve issue 2 in favour of the Appellants.” Per OTISI, JCA.