Judgment and Orders

• Pages: 593-1227

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JUDGMENT AND ORDERS.

ABSENCE OF EVIDENCE.

Can absence of defence per-seentitle plaintiff to judgment?(1) “Notwithstanding that the

defendant has not given evidence it does not ipso factofollow that every piece of evidence

which cannot satisfy the standard of proof that is, of preponderance of evidence, in a civil case,

has to be accepted by the Court: Oduola v. Coker(1981) 5 S.C. 197, 230. The Court can only

accept and rely on credible evidence which has not been controverted – Omoregbe v. Lawani

(1981) 3-4 S.C. 108, 177; Owonyin v. Omotosho(1961) 2 S.C.N.L.R. 57, (1961) All N.L.R.

304, (1961) N.S.C.C. 179.” – PerSalami, J.C.A., in Hawad Int’l Sch. Ltd. v. Mima Proj. Vent.

Ltd. (No.1) Suit No. CA/K/210/2002; (2005) 1 N.W.L.R. (Pt. 908) 552 at 567. (2) “The alleged

uncontradicted or unchallenged evidence which had, in any case, been demonstrated not to be

credible must establish the claimant’s case on minimal of evidence. The plaintiff who is the

appellant herein has a duty to prove his case on balance of probability notwithstanding the

failure of the defendant to adduce evidence in its own defence: Oduola v. Coker(Supra). His

case must preponderate on its own strength and not on the weakness of the defendant’s case.

See Jules v. Ajani(1980) 5-7 S.C. 96; Kodilinye v. Odu(1935) 2 WACA 336; Atuanya v.

Onyejekwe(1975) 3 S.C. 161; Nwagbogu v. Ibeziako(1972) 2 (Pt. 1) E.C.S.L.R. 335 and

Olujinle v. Adeagbo(1988) 2 N.W.L.R. (Pt. 75) 238.” – PerSalami, J.C.A., in Hawad Int’l

Sch. Ltd. v. Mima Proj. Vent. Ltd. (No.1) Suit No. CA/K/210/2002; (2005) 1 N.W.L.R. (Pt.

908) 552 at 568.

Can plaintiff be entitled to judgment in all cases where defendant does not defend action?

“It is not in all cases where a defendant does not defend an action that the plaintiff is entitled

to judgment. It depends on the peculiar facts of the case, as in this case where the respondents

relied heavily on a document and failed to tender it in Court. It is the law that a plaintiff cannot

rely on the weakness of the case of the defendant but must prove his case as presented in Court.”

– Per Tobi, J.S.C., in Abubakar v. Waziri Suit No. S.C. 41/2005; (2008) 14 N.W.L.R. (Pt. 1108)

507 at 534.

Can plaintiff be entitled to judgment where defendant fails to lead evidence in support of

his pleadings?“The abandonment of pleading by the defendant/respondent does not

automatically translate to judgment in favour of the plaintiff/appellant. He must adduce cogent

and credible evidence in support of his claim in order to succeed.” – PerBada, J.C.A., in

Oluyede v. Access Bank Plc. Suit No. CA/EK/33/2012; (2015) 17 N.W.L.R. (Pt. 1489) 596 at

607.

Option open to Court where party fails to adduce sufficient evidence to entitle him to

judgment.“For in a contested action, where the evidence is scanty and insufficient, and does

not amount to the minimum proof which will entitle a party on whom the onus of proof lies to

judgment, judgment ought to go to the opposite party. See Ogunjumo v. Ademolu(1995) 4

N.W.L.R. (Pt. 389) 254 at 165 (perKutigi, J.S.C.).” – PerNzeako, J.C.A., in Bodi v. Agyo Suit

No. CA/J/42/97; (2003) 16 N.W.L.R. (Pt. 846) 305 at 335.

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Striking out of pleadings where no reasonable cause of action or defence is disclosed.

“Order 24 rule 3 provides for the order the Court or Judge hearing the matter shall make in the

circumstance. Where the application is brought pursuant to Order 24 rule 4 (supra), I think the

procedure is akin to that under a demurrer proceeding. Under that rule, a Court may order any

pleading to be struck out on the ground that it discloses no reasonable cause of action or answer

under this same rule (rule 4), and the Court may order the action to be stayed or dismissed,

where it finds that the pleadings are frivolous or vexatious. In such a circumstance, it is only

the statement of claim that the Court will look into for the purpose of determining, as a

preliminary point, whether or not the plaintiff‘s pleading disclose a reasonable cause of action,

or whether it is frivolous or vexatious. In that respect, it is my view that under this rule, the

defendant need not file a statement of defence before raising the issue. He is however deemed

for the purposes of that application only, to have admitted the facts as pleaded by the plaintiff.

See Okpozo v. Bendel Newspaper Corp. (1990) 5 N.W.L.R. (Pt. 153) P. 652 at P. 660 per

Aniagolu; J.S.C.; Fred Egbe v. Alhaji Abubakar Alhaji & Ors. (1990) 1 N.W.L.R. (Pt. 128) P.

546 at PP. 591 - 592; Ibe v. Ahmed(1992) 4 N.W.L.R. (Pt. 235) P.311 at P. 319. See also Foko

v. Foko(supra).” – Per Tsammani, J.C.A., in Oluwole v. Margaret Suit No. CA/AE /59/2010;

(2012) 13 N.W.L.R. (Pt. 1318) 613 at 632 - 633.

Validity of a Court’s decision reached without any form of evidence. “I cannot contemplate

any decision which confers a right or imposes a liability on any of the parties being reached by

a Court established under the Constitution where there has been no evidence of a sort, be it oral

affidavit, and where none of the parties or their counsel would have uttered any word (by way

of addressing the Court) no matter how brief, whether orally or in writing. If there is any

procedure under any rules of Court whichpermits that, then it will be in conflict with section

258 (1) in some sense and therefore unconstitutional.” – PerOgebe, J.C.A., in ICON Ltd. v.

FBN Ltd. Suit No. CA/L/10/95; (2003) 12 N.W.L.R. (Pt. 835) 668 at 679 - 680.

When defendant who did not lead evidence may be entitled to judgment.“There is no

substance in the submission of the learned senior counsel for appellant that since the defendant

did not adduce evidence, judgment should be entered for the appellant. It shall be borne in mind

that the respondent did not adduce evidence and there are instances where defendant who did

not lead evidence may still be entitled to judgment of the Court. Such instances include where

the plaintiff failed to call evidence on material facts of his case or where the evidence by the

plaintiff is so patently or palpably discredited and unreliable that no reasonable Tribunal can

accept and act on it: Aduke v. Aiyelabola (1942) 8 W.A.C.A. 43, 45; Thomas Ofomaja v. Hon.

Commissioner for Education & Others(1995) 8 N.W.L.R. (Pt 411) 69. A defendant could also

obtain judgment in his favour without tendering oral evidence if through the cross-examination

of the plaintiff and his witnesses and tendering of document through them he destroys or

discredits the plaintiff’s case or establishes an iron cast defence. See Lawal v. Union Bank of

Nigeria Plc. & Others(1995) 2 N.W.L.R. (Pt. 378) 407 and Victor Orjiako v. The State (1991)

2 N.W.L.R. (Pt. 75) 578.” – PerSalami, J.C.A., in Hawad Int’l Sch. Ltd. v. Mima Proj. Vent.

Ltd. (No.1) Suit No. CA/K/210/2002; (2005) 1 N.W.L.R. (Pt. 908) 552 at 567.

595

When judgment of Court may be entered for defendant who did not adduce evidence. “In

the determination of this issue, it would be borne in mind that the defendants, appellants herein,

did not adduce iotaof evidence though there are instances in which defendants who did not

call any evidence may still be entitled to judgment. Such instances may include where the

plaintiff failed to produce evidence on material elements of his case or where the evidence

tendered by the plaintiff is so patently or palpably discredited and rendered unreliable that no

reasonable Tribunal can accept to act on it. See Aduke v. Aiyelabola(1942) 8 W.A.C.A. 43, 45;

Onyekaonwu v. Ekwubiri(1966) 1 All N.L.R. 32; Ofomaja v. Commissioner for Education

(1995) 8 N.W.L.R. (Pt. 411) 69. A defendant may also be entitled to succeed without adducing

oral evidence where through the cross-examination of the plaintiff and his witnesses and

tendering of documentary evidence through them thereby destroy the plaintiffs case and

establishes a valid defence: See L awal v. UBN Plc. & Others(1995) 2 N.W.L.R. (Pt. 378) 407.”

– PerSalami, J.C.A., in Tanarewa (Nig.) Ltd. v. Arzai Suit No. CA/K/23/2001; (2005) 5

N.W.L.R. (Pt. 919) 593 at 634.

ACTION FOUNDED ON JUDGMENT.

Duty on defendant pleading that judgment is statute barred. “In my humble view, a party

invoking the statute of limitation is bound to specify the reliefs in the judgment which the suit

is seeking to enforce. Without the reliefs granted in the judgment placed side by side with the

reliefs sought in the latter suit,it can hardly be said with any degree of certainty that the suit is

brought upon the judgment delivered earlier in time.” – Per Ngwuta, J.S.C., in Purification

Technique (Nig.) Ltd. v. Jubril Suit No. S.C. 159/2004; (2012) 18 N.W.L.R. (Pt. 1331) 109 at

140.

Nature and purpose of action founded upon a judgment. “As a matter of commonsense, an

action brought upon a judgment is an invocation of the coercive powers of the trial Court to

enforce the enforceable orders in the judgment. In other words, the action is intended to enforce

specific orders in the judgment.”– Per Ngwuta, J.S.C., in Purification Technique (Nig.) Ltd.

v. Jubril Suit No. S.C. 159/2004; (2012) 18 N.W.L.R. (Pt. 1331) 109 at 139.

ALTERNATIVE RELIEFS.

Does a Court need to consider alternative claim or objection where a claim or objection

succeed and decides matter?“Where a claim or an objection succeeds and decides the matter

there would be no need for the Court to consider the alternative claims or as in this matter

objections.” – Per Rhodes-Vivour, J.C.A., in Buhari v. YaboSuit No. CA/A/169/2003; (2006)

17 N.W.L.R. (Pt. 1007) 162 at 182 - 183.

When trial Court should consider alternative relief.“I shall quote from two cases cited by

the learned counsel as follows: S.C.E.I. v. Odunewu(1965) 2 All N.L.R. 135 that: “It is

submitted that where a trial Court is of the opinion that it may be wrong in its decision on the

principal claim of a party, it is desirable that it considers the alternative claim of the party. The

reason for such step is that the Court of Appeal will have on record the finding and opinion of