Alhaji Usman Dantata & Anor v. Mouktar Mohammed

I read in advance the judgment prepared by my learned brother, Ayoola JSC with which I am in full agreement. There is little this Court can do more than what is contained in the judgment. But certainly the 1st appellant has taken an undue advantage of procedural defects of the Rules of Courts to protract this case and deny justice to respondent He has by interlocutory appeals delayed hearing of the substantive

P.18

case. He thus sits on the property, collecting rents for about twenty years without fulfilling his own side of the contractual obligation to respondent. I only hope the Chief Judge of Lagos State will make arrangement for expeditious trial of the main suit so that justice will not be defeated by delay.

This is an appeal against the judgment of the Court of Appeal, Lagos Division. which on July, 15, 1997, reversed the decision of the High Court of Lagos State (Dolara F. Akinsanya. J.) dated March 11, 1994. Dismissing the Plaintiff/Respondent’s suit against Defendant/Appellant and 2nd Defendant/Respondent on the ground that it disclosed no reasonable cause of action and that it was statute barred.
The cause of action giving rise to the appeal herein arose as a result of Agreement sometime in 1980 between the Plaintiff and 1st Defendant wherein the Plaintiff agreed to exchange his property situate at Plot C. Turnbull Road, Ikoyi, Lagos with that of the 1st Defendant’s Industrial Plot situate at Sharada, Kano. Pursuant to the said Agreement the Plaintiff let the 1st Defendant into possession of his premises and gave his consent for the 1st Defendant to mortgage the said property to International Bank of West African Limited. The 1st Defendant as later transpired developed the property which he occupied for sometime before leasing the premises to the 2nd Defendant as a tenant. However, the 1st Defendant refused to perform his own part of the Agreement by putting the Plaintiff into possession of the property at Kano, inspite of the Plaintiffs

P.19

countless demands. After series of broken promises by the 1st Defendant, it became apparent to the Plaintiff that the 1st Defendant had no intention of honouring the pact made between them.

This is how the suit giving-rise to the appeal herein originated with the Plaintiff commencing same against the 1st and 2nd Defendants in April, 1992 for the following reliefs:-
“1. Declaration that the Plaintiff is the person entitled to Certificate of Occupancy dated 26th day of September, 1979 registered as No. 24 at page 24 in volume 1875 or the Register of Deeds kept at the Lagos State Land Registry, Lagos Nigeria.
2. Declaration that the Plaintiff is the person entitled to all that Premises known as Plot C. Turnbull Road, Ikoyi, now Jabita Close.
3. Declaration that the Agreement dated 28th November ,1980. BETWEEN Plaintiff and the 1st Defendant is null and void and not binding on the Plaintiff as the 1st Defendant has breached in a fundamental manner the provision of the said Agreement .
4. Possession of the said Premises.
5. An order of perpetual injunction restraining the Defendants their agents and or any person whosoever deriving authority from any of the said Defendants from dealing with and or interfering with the Plaintiff’s right in and over the aforesaid land in any manner howsoever having the effect prejudicing and or adversely effecting the rights of the Plaintiff in the said land.”
Pleadings were filed and exchanged but before trial was

P.20

embarked upon. The learned Counsel for the 1st Defendant brought a motion pursuant to Order 16 Rule 25: Order 22 Rules 2. 3 and 4 of the High Court of Lagos State (Civil Procedure) Rules 1972 and under the inherent jurisdiction for an order dismissing the Plaintiffs claim on the grounds that:-
(a) it discloses no reasonable cause of action that the reliefs sought are not such that the court can grant against the Defendants herein pursuant to the facts contained in the Statement of Claim.
(b) the reliefs are in any event unobtainable under the law, and
(c) the action is an abuse of the process of court.”
The learned trial judge in a considered Ruling held inter alia thus:-
“Having considered the objection raised by the 1st Defendant against the claim. I find them all founded ……………..
The combined effect of these rules can only lead to an order dismissing the suit because once the action is statute-barred no purpose would be achieved to strike it out I therefore make an order dismissing the Plaintiff (sic) suit upon those grounds as endorsed on the motion or the 1st Defendant.”

Dissatisfied by the decision, the 1st Defendant appealed to the Court of Appeal  (hereinafter referred to as the Court below) which allowed the Plaintiffs appeal to the extent that reliefs (a) and (b) (ibid), were properly claimed as reasonable causes of action. Further, that the action should be tried on the merits before another judge and

P.21

with liberty to the parties to amend their respective pleadings to accord with the justice of the case.
The 1st Defendant was unhappy with this decision. Whereof on his behalf, four grounds of appeal were filed attacking the decision. From them, the only single issue submitted as arising for our determination states:-
“Whether reliefs (a) and (b) sought by the Plaintiff disclose reasonable cause of action in the sense that they are such that the Court can grant against the 1st and 2nd Defendants pursuant to the facts contained in the Statement of Claim.”
The first question one must answer if one was asked is what constitutes a cause of action and whether by the facts contained in the Statement of Claim in the instant case on appeal, a reasonable cause of action is disclosed. The term “cause of action” was judicially defined by this Court, applying Read v. Brown (1889) 22 QBD 128 at 131, per Lord Esher M. R. in Lasisi Fadare & Ors. v. Attorney-General of Oyo State (1982) 4 SC 1 at page 7. per Aniagolu JSC as:-
“denoting every fact (though not every piece of evidence) which it would be necessary for the Plaintiff to prove,if traversed to support his right to the judgment of the Court.”
See also Egbe v. Adefarasin (1985) 1NWLR (Pt. 3) 549 and Thomas v. Olufosoye (1986) 1 NWLR (PI. 18) 669. As a matter of fact, any act on the part of the Defendant which gives the Plaintiff a cause of complaint is a cause of action. See Bello & 13 Others v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828 at 876 and Adimora v. Ajufo (1988) 3 NWLR (Pt. 80)1: in the

P.22

latter case at p.17 Oputa. JSC stated as follows:-
“Thus the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action”.
Similarly, a reasonable cause or action has been defined to mean:-
“a cause of action which (when only the allegations in the Statement of Claim are considered) has some chance of success” per Uwais, JSC as he then was, in Oshoboja v. Amuda (1992) 6 NWLR (Pt.250) 690 at 702.
It is trite law that in the determination of a reasonable cause of action in the Statement of Claim only the facts contained therein are deemed admitted. The admitted facts will then be examined to ascertain it they would entitle the Plaintiff to the remedy sought. See Shell B. P. Petroleum Development Co. v. Onasanya (1976) 6 SC 89

In the case at hand, I shall now relate the position of the law to the relief sought in the Statement of Claim by commencing with Reliefs (a) and (b) considered together.
The Reliefs set out by the Plaintiff in his Writ of Summons have earlier been copied out in (a) and (b) respectively. They represent his (Plaintiffs) legal right vis-a-vis the 1st Defendant’s obligation – the latter which culminate in his (Defendant’s) flagrant refusal to fulfil his side of the transaction in relation to which the Plaintiff had pleaded in paragraphs 4, 11, 12 and 13 of the said Statement of Claim as his root of title to the Plot situate at Plot C. Turnbull Road, Ikoyi, Lagos (otherwise now known as Jabita Close. Ikoyi, Lagos) registered as No. 24 at page

P.23

24 Volume 1875 of the Register of Deeds, Lagos, Lagos State Lands Registry, Alausa, Ikeja, Lagos. The Certificate of Occupancy being dated the 20th of September, 1979.
These facts are deemed to have been admitted by the Defendants for the purpose of demurrer proceedings. Since the Plaintiff is still the holder of the Certificate of Occupancy of the said land and therefore has an enforceable legal right, that right entitles him to a declaration in law hearing in mind the reliefs are meant to declare an existing state of affairs in law. The declaration sought by the Plaintiff against the Defendants is therefore clearly for the determination of questions as to the Plaintiffs civil rights and obligations. It is also a civil proceeding in which the existence of a legal right falls for determination, See Attorney-General of Bendel State v. A. G. Federation & Ors. (1982) 3 NCLR 1.
From the foregoing, it can be seen that Plaintiff’s claim does not only have “some chance of success” following what Uwais, CJN said in Oshoboja v. Amuda (supra), the Plaintiff’s Certificate of Occupancy remains valid and that it also gives him the right to claim a declaration that he is the person entitled to the said land.
As a declaratory relief is independent and a separate cause of action on its own in that it is the law that the jurisdiction of the Court to make a declaration is not confined to cases where a Plaintiff has a complete and subsisting cause of action but may also be employed in all cases where the Plaintiff conceives he has a right. See the dictum of Karibi-Whyte. JSC in Adigun v. Attorney-

P.24

General of Oyo State (1987) I NWLR (pr. 53) 678 at 741, where the learned Justice said:-

“…I think it is in our jurisprudence quite elementary that our High Court has always had the jurisdiction to make a declaration in all cases where the Plaintiff conceives he has a right even if there is no complete and subsisting cause of action ….”
See also Igbokwe v. Udobi (1992) 3 NWLR (pr. 228) 214, where Oguntade JCA relying heavily on the dictum of Bankes. L.J. in Guaranty Trust Company of New York v. Hannay & Company (1915) 2 KB 536 at 572 stated as follows:-
“It is the person therefore who is seeking relief on whom a right to relief is alleged to exist, whose application to the Court is not to be defeated because he applies merely for a declaratory judgment or order and whose application for a declaration or his right is not to be refused merely because he cannot establish a legal cause of action ….”
I am of the firm view that reliefs (a) and (b) being declaratory in nature are competent and the Court ought not to dismiss the claim even if claim, as it were discloses no reasonable cause of action.
I will next consider relief (c). which was attacked as disclosing no reasonable cause of action. It is sufficient to say in respect of this relief that since what the Plaintiff claimed is:-
“a declaration that the agreement dated 28th of November, 1980 between the Plaintiff and the 1st Defendant is null and void and not binding on the Plaintiff as the 1st Defendant has breached in a fundamental

P.25

manner the provisions of the said agreement.”
I take the view that since the facts disclosed in paragraphs 4 – 20 of the Statement of Claim, particularly paragraphs 16 and 18 which are facts constituting the bad and fraudulent acts of the 1st Defendant, they (Defendants) cannot be heard to contend that illegality and fraud not having been pleaded, there are no facts to support the relief sought. I need only set out herein the two paragraphs to exemplify how fallacious their contention is. to wit:

“16. The Plaintiff made several demands on the 1st Defendant to live up to their agreement but that the Defendant always come (sic) up with one excuse or another and always ask for more time to live up to his own side of the agreement.
18. The 1st Defendant actions are in bad faith and have completely breached the agreement entered into between the 1st Defendant and the Plaintiff on the 28th of November, 1980 and rendered the agreement null and void and not binding on the Plaintiff.”
In essence, 1st Defendant persistently promised to put the Plaintiff into possession of the property at Sharada Kano, after he had taken possession of the Plaintiff’s property in Ikoyi, Lagos but deliberately declined to fulfil his obligation.

It is accordingly discernible from the foregoing that the allegation is that the 1st Defendant look possession of the Plaintiff’s property under false pretences while manifesting no demonstration of an intention of ever

P.26

fulfilling his own side of the contract, thus displaying palpable imputation of fraud. Since the relief sought by the Plaintiff is a declaration. I humbly adopt my conclusions I arrived at in reliefs (a) and (b) ibid for issue (c) herein. Furthermore, as the prayer for a declaration presupposes that the Plaintiff has some rights concomitant with the relief sought, the maxim” Ubi jus ibi remedium” – where there is a right there is a remedy – has sway here. See also the case of Bello & Ors. v. Oyo State (supra) and Thomas v. Olufosoye (1986) I NWLR (Pt. 18) 669; of the latter case Oputa, JSC said:-
“The broad general principle of law is contained in the old Latin maxim:
“Ubi jus ibi remedium. Jus here signifies the legal authority to do or demand something and Remedium here means the right of action of the means given by law for the recovery of the declaration or assertion of that right. In other words, the maxim presupposes that wherever the law gives a right, it also gives remedy, that remedy must be founded on a legal right.”(italics is for emphasis.) See also Bello & 13 Ors. v. A. G. Oyo State (1986) 5 NWLR (Part 45) 828.
    Applying the above to the instant case, it is in my view clear that the Plaintiff does indeed have a right to the relief sought. This is the more so as the issue raised in these reliefs is the Agreement purportedly entered into by the parties, the basis of which the Defendants are seeking to alienate his (Plaintiff’s right to his property at Turnbull Road (now Jabita Close). Indeed, I hold the firm view that the Plaintiff is entitled to some remedy although not nullification. See Egbuche v. Idigo 11 (1934) NLR

P.27

140. Clearly, there are other remedies open to him in the event of a breach of contract e.g. rescission of the contract or specific performance while being careful not to be time-barred. See Odusoga v. Ricketts (1997) 7 NWLR (Pt. 511) 1 at 1617.By a long line of decided cases. it has been established particularly in Eronini v. Iheuko (1989) 2 NWLR (Pt. 101) 46 at 60-61, that declaratory judgments being equitable remedies are discretionary remedies which should be exercised judicially and judiciously.
     In the instant case. the Plaintiff, in my view, is entitled to the declaratory reliefs sought both in law and in equity.
     Reliefs (d) and (e):

The above reliefs relate to possession and perpetual injunction which in a claim for declaration, are known and called ancillary reliefs. Even though the writer of the leading judgment in the instant appeal (Uwaifo. JCA as he then was) had held that:-
“It will be conceded that the other three reliefs sought cannot be supported by the facts in the Statement of Claim. It can therefore be successfully raised in a preliminary way that there is no cause of action disclosed in respect of them.”
It being quite elementary that a claim for possession presupposes the existence of a valid title (already clearly established in the instant case to be radically vested in the Plaintiff and not the other way round, the argument by learned Counsel for the 1st Defendant which appears to have missed the point when in his Brief of Argument at page 8 he proffered that “if the Plaintiff cannot claim possession of the premises, he cannot also claim that he

P.28

is entitled to the same premises.” Then his argument becomes non-sequitor. As I had occasion to observe in Are v. Ipaye (1986) 3 NWLR (Pt:29) 416 at 427 in the Court of Appeal:
“It was incumbent on the 1st and 2nd Defendants (only the 2nd Defendant was left to defend the action) to prove that radical title in Are became vested in them. This is because building of permanent houses, shops, mosques and churches would, in my view, not be enough in the themselves to confer title on a person in possession”
– leaving an inference that he is no more than a trespasser on the land”.
Be that as it may, this issue of ownership or re-possession of the property is, in my view, a triable issue upon which the Court ought to adjudicate and decide the rights of the parties. See Uwaifo v. Attorney-General of Bendel State (1982) 7 SC 124. It is not the reasons I have given above and the more elaborate ones proffered by my learned brother Ayoola. Jsc. a preview of which I had in his leading judgment, that I too dismiss this appeal. I make the same consequential orders inclusive of those relating to costs as couched in the leading judgment.

I have had a preview of the leading judgment of my learned brother Ayoola. JSC with which I am in full agreement. By a written agreement between the plaintiff and the 1st defendant dated 28th November, 1980 the parties agreed to exchange their respective properties, to wit, the plaintiffs undeveloped property situate at Plot C, Turnbull Road, lkoyi, Lagos for the 1st defendant’s property situate at Industrial Plot at Sharada,

P.29

Kana and consisting of four acres, half of which had been developed by the 1st defendant’s factory built thereon. Pursuant to the said agreement, the plaintiff let and put the 1st defendant into possession of his property, and also gave him consent to mortgage the said property to International Bank of West Africa Ltd which would assist the 1st defendant to raise money for the development of the said property.

1st defendant in fact developed the property by erecting a house thereon, occupied it for some years and the thereafter leased it to the 2nd defendant. Strangely, the 1st defendant, in breach of the agreement, failed to perform his own part of the agreement by putting the plaintiff into possession of his own property, despite several demands by the plaintiff. Consequent to this statement, the plaintiff instituted this action and claimed as follows:
“(a) Declaration that the Plaintiff is the person entitled to Certificate or Occupancy dated 26th day of September, 1979 registered as No. 24 at page 24 in volume 1875 of the Register of Deeds kept at the Lagos State Lands Registry Lagos Nigeria.
b. Declaration that the Plaintiff is the person entitled to all that premises known as Plot C, Turnbull Road, Ikoyi now Jabita Close.
c. Declaration that the agreement dated 28th November, 1980 BETWEEN Plaintiff and the 1st defendant is null and void and not binding on the Plaintiff as the 1st defendant has breached in a fundamental manner the provision of the said agreement.

P.30

4. Possession of the said Premises.
   5. An order of perpetual injunction restraining the Defendants their agents and or any person whosoever deriving authority from any of the said Defendants from dealing with and or interfering with the Plaintiff’s right in and over the aforesaid land in any manner howsoever having the effect prejudicing and or adversely effecting the rights of the Plaintiff in the said land.”
   In reply to the plaintiff’s statement of claim, the defendants respectively filed and served their statements of defence. It is however important to note that the 2nd defendant additionally filed a counter-claim to his statement of defence seeking a declaration of the trial court that he is entitled to be registered as owner of the properly situate at Plot C, Turnbull Road, Ikoyi, Lagos.
   After parties had exchanged pleadings, and before the trial commenced, the 1st defendant by a motion, brought pursuant to Order 16 Rule 25 and Order 22 Rules 2,3, &4 of the High Court or Lagos (Civil Procedure) Rules 1972 and under inherent jurisdiction prayed for an order dismissing plaintiff’s case on the ground that it disclosed no reasonable cause of action and the reliefs sought were unobtainable at law.

The learned judge dismissed the action as prayed. On appeal, the Court of Appeal allowed the appeal to the extent that reliefs (a) and (b) were properly claimed as reasonable causes of action and that the action was not statute-barred but thereafter dismissed the other reliefs claimed.

P.31

The 1st defendant was dissatisfied; he has appealed to this Court on four grounds of appeal from which he postulated in his brief just one issue for determination, to wit,
“Whether reliefs (a) and (b) sought by the plaintiff disclose reasonable cause of action in the sense that they are such that the Court can grant against the 1st and 2nd Defendants pursuant to the facts contained in the Statement of Claim.”
For the plaintiff his learned counsel identified one issue for determination. This is:
“Whether the plaintiff’s claim as formulated in the Statement of Claim disclose any reasonable cause of action.”
Clearly, the two sets of issues for determination cannot be right: 1st defendant’s set is narrow and limited to appeal in respect of reliefs (a) and (b) whilst the plaintiff’s set is wide and encompasses all the five reliefs sought by him. He is not the appellant and so he has no right to stretch the scope of the appeal filed by the 1st defendant. By the rules of Court and practice, the issue or issues for determination, are imperatively circumscribed or limited by the grounds of appeal. It is the law that any issue for determination not encompassed in the grounds of appeal is incompetent and should either be struck out or discountenanced. A close examination of the two sets of issues manifestly shows that while the 1st defendant/appellant restricts the issue for determination to whether reliefs (a) and (b) disclose reasonable cause of action as warranted by the four grounds of appeal on

P.32

which his monolithic issue is predicated, the plaintiff/respondent has formulated his issue for determination so expansively that it extends additionally to whether reliefs (c), (d) and (e) also disclose reasonable cause of action. This is rather bizzare because reliefs (c), (d) and (e) are not covered by any of the grounds of appeal, and it is undisputed that plaintiff/respondent has not filed a cross-appeal. No doubt, it seems to me that plaintiff/respondent predicated his lone but wide issue for determination on the arguments proffered by the 1st defendant/appellant in his brief which unwittingly and unduly overlapped reliefs (c), (d) and (e). This cannot be right nor should it be tolerated. As we had already stated, issues for determination must be predicated on the grounds of appeal.

For avoidance of doubt, 1st defendant/appellant and in line with what I have been saying above, clearly limits the reliefs sought from this Court to setting aside the decision of the lower court in relation to reliefs (a) and (b) and reiterates this stance in the appeal as lucidly set out in paragraph 3.19 at p 9 of his brief. It is therefore clear to me that to also decide on whether reliefs (c), (d) and (e) establish or disclose reasonable cause of action is uncalled for and clearly outside the scope of the ground of appeal. The appellate court. particularly the apex Court, should roundly discourage undue and deliberate extension of issues to be agitated on appeal beyond the complaint encompassed in the grounds of appeal.
Be that as it may, the kernel of this appeal for our consideration is what constitutes a cause of action and

P.33

thereafter, apply that explanation of a cause of action to the averments in the plaintiff’s statement of claim to then decide whether or not a cause of action has been made out. There is no gainsaying the fact that the courts are familiar with the phrase “cause of action”. The question. what is a cause of action, generally, but not invariably, arises when the court is confronted with the determination whether or not a plaintiff’s claim or defendant’s counter-claim is statute-barred. The term has exercised the courts but nevertheless has been variously defined judicially. I would content myself with three such definitions.
First Oputa, JSC, referring to Cooke v. Gill (1873) 8 CP 107 and Read v. Brown (1889) 22 QED 128 at P.131 per Lord Esher, M. R., in the case of Adimora v. Ajufo (1988) 3 NWLR (PI. 80) 1; (1988) 6 SCNJ 127at 30-31 offered a classic definition as
” …(consisting) of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.”
Uwais. JSC(as he then was) in Egbue v. Araka (1988)3 NWLR (Pt.84) 598; (1988) 7 SCNJ 190 at 201 described the phrase as
“the fact or combination of facts which give rise to a right to sue.”
A fairly-recent definition of the phrase has been offered by Jacob, J in Newport Association Football Club and Ors v. Football Association of Wales Ltd (1945) 2 All ER 87 at 92 as “a cause for an action in the courts to determine a disputed matter.”
See also Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 5 19: Bello v. A.G. of Oyo State (1986) 5 NWLR (Pt 45) 828 at

P.34

876; Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669;Akila v. Fawehinmi (No.2)( 1989)2 NWLR (Pt.102) 122: Shell B. P. Perroleam Development Company of Nigeria Ltd. v. Onasanya (1976) 6 SC 89 and Salida v. Kakawa Local Government & anor (1991) 2 NWLR (Pt.174) 379 at 390.

The above definitions of the phrase “cause of action” are reasonably lucid to afford intelligible understanding of the term which to my mind comprises the averment or averments in the plaintiff’s statement of claim that disclose his right to institute an action for a wrongful act alleged. In the instant case, I shall examine the facts averred in the statement of claim to determine whether they can sustain the various reliefs claimed by the plaintiff. Of course, by the single issue for determination identified by the 1st defendant/appellant, our inquiry is limited to whether a cause of action arose in respect of reliefs (a) and (b).
Appellant’s learned counsel submitted that reliefs (a) and (b), in order to succeed, the plaintiff must establish that he is not only entitled in law but also in equity to the property which he has in his statement of claim averred that he has voluntarily transferred to 1st defendant. Thus he relied on Okafor Egbuche & anor v. Chief Idigo & anor II NLR 140; (1984) I SCNLR48 1 where the appellate court dismissed the declaration awarded by the Onitsha Provincial Court as “the plaintiffs ancestors having by agreement in 1888 divested themselves of all right or title competent to them had no longer any right or title to the land and their claim for a declaration of title should have

P.35

been refused.” The court accordingly dismissed the plaintiffs’ claim for declaration of title. A further and similar reliance was placed on Egbunike & anor v. Muonweokwu (1962) I SCNLR 97; (1962) 1 ANLR 46 wherein, inter alia, it was held by the Federal Supreme Court that a declaratory judgment being discretionary it must be shown that the circumstances of a case warrant making the grant in the plaintiff’s favour. Appellant’s counsel submits that relying on the statement of claim, the plaintiff is not entitled to reliefs (a) & (b) but could only be entitled to specific performance of the contract and/or damages for breach and this is more so when a 3rd party’s interest has arisen. Finally, counsel submits that reliefs (a) & (b) are not sustainable as they disclose no reasonable cause of action.
Plaintiff’s learned counsel submits that the plaintiff, as holder of the statutory right of occupancy in the property exchanged with the 1st defendant has had his legal rights in respect thereto infringed by his protracted delay and refusal by the 1st defendant to effect the agreed exchange. This counsel contends, has created a cause of action in plaintiff’s favour for the reliefs (a) & (b) sought by reason of the wrongful act of the 1st defendant, notwithstanding the plaintiff’s averment in his statement of claim. Furthermore, counsel submits that a declaratory relief is an independent and separate cause of action on its own and the jurisdiction of the court to make a declaration is not confined to cases where a plaintiff has a complete and subsisting cause of action but may also be evoked in all cases where the plaintiff conceives he has a right.

P.36

He calls in aid the dictum of Karibi- Whyte, JSC in Adigun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) 678. Counsel also relies on the dictum of Oguntade. JCA in Igbokwe v. Udobi (1992) 3 NWLR (Pt.228) 214, relying on the dictum of Bankes L.J, in Guaranty Trust Company of New York v. Hannay & Company (1915) 2 KB 536 at 572 in saying that a declaration of one’s right can be claimed merely by a person for a declaratory relief. Accordingly, learned counsel urges the court to dismiss the appeal and hold that reliefs (a) and (b) being declaratory in nature are competent and ought to be granted even if the other reliefs claimed by the plaintiff disclose no reasonable cause of action.
Finally, counsel also refers to the useful cases cited and relied on by 1st defendant’s counsel, to wit. Egbuche v. Idigo 11 NLR 140; (1984)1 SCNLR 481 to buttress his contention that plaintiff was entitled in both equity and in law to the declaratory reliefs sought because this case was distinguishable from the case under reference in that notwithstanding the averment in the statement of claim that plaintiffs landed properly has been vested in 1st defendant, in fact there was no such divesting of the plaintiff because there was no transfer to the 1st defendant as the plaintiff still retained possession of his certificate of occupancy. Counsel accordingly urged us to dismiss the appeal. I have examined the plaintiffs statement of claim with particular reference to reliefs (a) and (b).     Furthermore, by the procedure adopted by 1st defendant our consideration of this appeal, as earlier observed is confined to the averments in the statement of claim, which for the purpose of the dispute between the

P.37

parties are deemed to be true and admitted by the 1st defendant. Plaintiffs property involved in the aforesaid contract of exchange with 1st defendant. i.e. Plot C, Turnbull Road, Jabita Close. lkoyi, Lagos. was duly registered as No. 24. at p.24 Volume 1875 of the Register of Deeds. Lagos Lands Registry Lagos. This was subsequently followed by the issuance of the Certificate of Occupancy dated 20th September, 1979 in favour of the plaintiff. Clearly, it must be borne in mind that the purpose of a declaratory relief sought from the court is essentially an equitable relief in which the plaintiff prays the court in exercise of its discretionary jurisdiction to pronounce or declare an existing stale of affairs in law in his favour as may be discernible from the averments in the statement of claim. In the case on hand, it is incontestable that the plaintiff is currently – notwithstanding the nearly- 20 year old agreement between the plaintiff and the 1st defendant- in possession and holder of the Certificate of Occupancy in respect of Plot C. Turnbull Road, Lagos. And accordingly enjoys enforceable legal rights thereto entitling him to the declaration sought.

And on the legal authorities adumbrated above, plaintiffs declaratory reliefs under (a) and (b) are quite separate and independent of the other three reliefs claimed by him in the sense that failure of those other three reliefs as giving reasonable cause of action cannot, in any way affect plaintiffs claim for declaratory reliefs under (a) and (b).
Perhaps, it is pertinent to further emphasise and illustrate the separateness and independence of declaratory reliefs

P.38

vis-a-vis other substantive reliefs which are often claimed in the same action. Now let us refer to Order22 Rule5 of the High Court of Lagos State (Civil Procedure).
Rule 5 provides that “No action shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby and the court may make binding declarations of right whether any consequential  relief is or could be claimed or not.”
In the light of the separateness between a declaratory relief and other consequential reliefs that may be claimed in the same action. It is necessary to emphasise and reiterate that the other claims sought by the plaintiff ought not to be taken into consideration for the determination whether or not the declaratory reliefs sought by the plaintiff are sustainable or not.
Both counsel adverted to the authority of Egbuche v. Idigo (supra) in support of their respective but divergent contention on the effect of plaintiffs purported averment that he (plaintiff) had transferred his property under the agreement to the 1st defendant. If Egbuche v. Idigo is closely examined it will be found to be distinguishable from the facts of the case under review. In Egbuche v. Idigo the plaintiffs fully divested themselves of title to the property in dispute and so. It became obvious that thereafter they had no legal right whatsoever to the claim for declaration of title to the said land and therefore the declaration claimed by them was rightly refused. In the present appeal however, the plaintiff still retains the certificate of occupancy granted to him in 1979. In effect, the agreement between the plaintiff and 1st defendant was clearly one for agreement to assign and not an

P.39

assignment as such. I am therefore clearly of opinion that Egbuche v. ldigo is totally irrelevant in the instant case. In the result, I am clearly of the view that the lower court was in error to have held that reliefs (a) and (b) which are declaratory reliefs did not disclose a reasonable cause of action.
Before concluding this appeal, I deem it necessary to say a word, albeit, cursorily with regard to relief (c). The relief seeks “A declaration that the agreement dated 28th of November, 1980 between the plaintiff and the 1st defendant is null and void and not binding on the plaintiff as the 1st Defendant has breached in a fundamental manner the provisions of the said agreement.”

It would be recalled that the plaintiff had performed and therefore discharged his obligation under the panics nearly 20 years agreement and the 1st defendant curiously is yet to play his part in the exchange of properties concluded by them. It is commonplace that the 1st defendant had since developed the land he received from the plaintiff in the exchange arrangement but engages in baseless, heartless and morally indefensible procedural depravity to deprive the plaintiff of his legal right under their apparent freely-concluded agreement by his tenacious refusal to let plaintiff into possession of his own property, a posture to be roundly deprecated because it smacks of injustice and leaves a sour taste in the mouth for the so-called gentlemen in society to exhibit such unprecedented callousness with careless abandon. The position is the more disturbing in the face of the fact that the law is virtually powerless to intervene firmly in

P.40

favour of the down-trodden weaker party.
Having said that much, the question remains, is the agreement between the parties void or binding to warrant the declaratory relief sought by the plaintiff? The answer must be in the negative. This is a simple contract of exchange of properties between the parties which has been executed by one party but yet to be executed by the other. Undoubtedly, the agreement is supported by consideration agreed to he reciprocated by each other. It is a simple and binding contract in law. By his failure to let the plaintiff into possession of the promised industrial property the 1st defendant is in breach of the agreement. This leaves the plaintiff with the first option to hold that the breach is a Fundamental one which entitles him to treat the agreement as rescinded and further claim the return of his own land which he had let the 1st defendant into possession, where the circumstances permit, because it is manifest that this is a case of total failure of consideration. The plaintiff also has the second option of seeking specific performance of the contract i.e. for 1st defendant to let him into possession of his land, while also asking the court to be paid damages for the breach of contract as alleged, it will be strange, if not ridiculous for the court to be invited to declare the parties’ agreement null and void by mere reason that the 1st defendant is in breach in respect of his obligation. The court cannot accede to such declaratory relief for it goes against the justice of the case which ordinarily entitles the plaintiff to either the rescission of the contract or a claim for specific performance, and in either situation coupled with damages for the breach of the contract alleged.

P.41

What I have tried to say above in respect of relief (c) only goes to show that if relief (c) is properly recouched the fact of breach of contract alleged would make the declaratory relief sought sustainable.

For the reasons earlier given by me in this appeal in relation to the parties’ sets of issues for determination, it is manifest that all that has been said herein about relief (c), no matter how benevolent the court may be disposed to hold, is outside 1st respondent’s set of issues for determination.
Nevertheless, by reason of what I had earlier observed about the injustice meted out to the plaintiff, this Court – as apex Court – ought to invoke the plenitude of its judicial power. In the interest of justice and thereby promote justice in all the circumstances of this case, more so as counsel’s submissions outside the narrow confines of the issue for determination have clearly justified. Unquestionably, after a futile period of nearly 20 years of the agreement between the parties, wherein the plaintiff is completely disenchanted and yet the 1st defendant has been enjoying the best of the two worlds, as it were, – retains his Kano property and yet had fully developed plaintiffs Lagos property – it is needful for this Court to invoke its general power under section 22 of the Supreme Court Act to ensure that the real question in controversy between the parties is judicially addressed and redressed with dispatch.
For all I have said, this appeal deserves to fail and it is accordingly dismissed. I abide by the consequential

P.42

orders made in the leading judgment, including the orders as to costs.

 I have had a preview of the judgment of my learned brother Ayoola JSC and I am in agreement with him that there is no merit in the appeal. I fully endorse the reasoning and conclusions reached therein which I adopt as mine and dismiss this appeal as lacking in merit.
The only issue for determination in this appeal is whether reliefs (a) and (b) of the Plaintiff/Respondent’s statement of claim disclose reasonable cause of action and can be granted by the trial court having regard to the facts contained in the statement of claim.
“Cause of action” has been legally defined to mean a fact or combination of which when proved would entitle a plaintiff to a remedy against a defendant. See Bello v.  A. G.Oyo State (1986) 5 NWLR (Pt.45) 828; Egbe v. Adefarasin (1987) 1 NWLR (Pl.47) 1; Adimora v. Ajufo (1988) 3 NWLR (Pt.80)1; Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) 122; Joachimson v. Swiss Bank Corporation (1921) 3 KB 110 at 128. And a “reasonable cause of action” has also been defined to mean a cause of action which (when only the allegations in the statement of claim are considered) has some chance of success. See Thomas v. Olufosoye (1986) I NWLR (Pt.18) 669; Egbue v. Araka (1988) 3 NWLR (Pt.84) 598; Drummond Jackson  v.  British  Medical Association & Ors (1970) I WLR 688 at 696.

P.43

In determining the cause of action or a reasonable cause of action it is irrelevant to consider the weakness of the plaintiffs claim: what is important is to examine the averments in the statement of claim and see if they disclose some cause of action or raise some questions fit to be decided by the court. Therefore in this appeal, the contention of the learned counsel for the appellants that the plaintiff/respondent did not claim the relief of specific performance or damages for breach, cannot in my view, defeat the action having regard to the totality of the averments in the statement of claim. I have read the contents of the statement of claim filed by the plaintiff/respondent in this action, and I am satisfied that they disclosed reasonable cause of action taken as a whole.
I agree with the Court of Appeal that reliefs (a) and (b) in paragraph 21 of the statement of claim constituted declaratory reliefs meant to declare the legal state of affairs between the parties. Therefore since the legal right to the land in dispute is at the time or filing the action, in the hands of the plaintiff/respondent, it necessarily follows that reliefs (c), (d) and (e) must also be available to the plaintiff/respondent. See Thomas v. Olufosoye (supra). If a person has a legal right to a piece of land which he can properly claim as his own, then it follows that he has the right to possess it and keep off any trespasser from coming on to it. It is for this reason that I agree with Ayoola JSC that reliefs (e). (d) and (e) in paragraph 21 of the statement of claim are also available to the plaintiff/respondent, even though there was no cross-appeal on same having regard to the provisions of

P.44

Section 22 of the Supreme Court Act and 0.8. rules 2 and 5 of the Supreme Court Rules 1985 as “mended.
For the above reasons and the more detailed ones set out in the leading judgment of Ayoola JSC. I find no merit in this appeal and I hereby dismiss it, abide by the consequential orders made therein including the order as to costs.

Appeal dismissed