INTRODUCTION

The inaugural part of this discourse was necessarily introductory. It
examined the history of Declarations, their evolution and milestones.
Today, we shall continue with the meaning and nature of Declarations and
the principles for granting Declarations. Read on.

MEANING AND NATURE OF DECLARATIONS

“Declaration” can be given various definition depending on the
circumstances in which one tries to define it. There are various types of
declarations, examples of which are declarations of trust (where one who
holds legal title to a property acknowledges that the property is being held
in trust for another person or for a specified purpose), declaration of
intention (a formal statement resolving to be a citizen of a particular
country and to renounce allegiance to any other government or country),
dying declarations (a statement made by one who believes that death is
imminent in relation to the cause of the death), declaration of alienage, etc.
The Advanced Oxford’s Dictionary defines a declaration as “an official or
formal statement, especially about the plans of a government or an
organization”.
The Webster’s Dictionary and Thesaurus for student defines a declaration
as “something declare (made known in a clear or formal way) or a
document containing such a declaration. Despite the various kinds of
declarations and definitions given to it, I would for the purpose of this text
adopt the following definition:

“A declaration is a formal statement,
proclamation or announcement especially are
embodied in an instrument” (See the Black’s Law
Dictionary).

In this treatise, I will be mostly concerned with declaratory orders made by
the courts as some form of equitable relief. It has been observed in various
cases that courts now have the power to make a declaratory right whether
any consequential relief is or could be claimed. It could be made under

appropriate circumstances so as to bind future rights where no substantive
relief can be obtained at that moment.
See EMMANUEL EKWUNO & EIGHTEEN ORS. Vs. N. O. IFEJIKA &
ANOR ((1960) 5 F SC 156), where even though the Defendants were not
in actual possession of the disputed land and had not even trespassed it
so as to bring a ground for substantive relief, the court nevertheless
granted a declaration on the ground that a declaration could be claimed as
an independent relief in order to resolve competing claims to a right, and
that it is immaterial that there has been no actual or threatened interference
with the enjoyment of the right as to support the grant of the substantive
relief, it was also granted on the ground that the defendant had denied the
Plaintiff s ownership over the land thereby creating an imminent threat of
trespass.
See also EDJERODE Vs. IKINE ((2001) 12 S.C. (PART II) 94 ESP 129,
where the trial court dismissed the action as the respondents were denied
the chance to state their case even at the stage of pleadings, the appellate
court set aside its decision on the basis that the court can grant declaration
to a party who has a right even where there is no subsisting cause of
action. It also resorted to the unlimited jurisdiction vested in the High Court
by virtue of Section 236(1) of the Constitution of the Federal Republic of
Nigeria to debunk the fact that the trial court had no jurisdiction to entertain
the matter as was emphasized by the trial court.
Finally, see ODUYOYE Vs. LAWAL (2003) 3 NWLR PT. 807 @ 432 C.A.,
which involved chieftaincy declaration in Ijebu-Ode in Ogun State, where
the court spoke on the nature of declaratory orders in ratio 7 holding as
follows:

“It is a remedy for the determination of a
justiciable controversy where the Plaintiff is in
doubt as to his legal rights and status of
litigants even though no consequential relief is
awarded.”

The foregoing shows the liberal nature of declaratory orders. Its is not
easily dismissed on the ground that no reasonable cause of action hast
been disclosed which should have 3entittled the Plaintiff to some form of
executor relief except where its frivolous. It is a very flexible relief.

With regard to the discretionary nature of declaratory orders, it settled that
the courts possess the undoubted discretion to grant such orders but it
must be exercised in good faith. Such discretion should not be interfered
with by any other court except where wrongfully exercised either on
grounds of law, misapprehension of fact or giving weight to an unproved
matter. In this regard, in ODUYOUYE Vs. LAWAL (supra), the court opined
that:

“Where judicial discretion is exercised bonafide
by a trial court uninfluenced by irrelevant
considerations and not arbitrary or illegal, the
general rule is that an appellate court will not
ordinarily interfere”.

Declaratory reliefs can be granted whether or not the defendant has made
an admission. The court declares what it believes to be the law of the
proper arguments have been made and not merely ion the admission of the
parties or weakness of the defendants case. See the case of AREWA
TEXTILES PLS Vs. FINETEX LTD (2003) 7 NWLR (PT. 819) 322 C.A.
ESP. R. 5, where the court spoke on the nature of declaratory reliefs as
follows:

“An action for declaration is a procedural device
for ascertaining and determining the respective
rights of the parties. 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 after
admission by the parties…”

In the above case, the court further held that the case could only succeed
on the evidence given by the Respondents and not on the admission or
weakness of the defendant’s case. It is imperative for the Plaintiff to rely on
the strength of his own case and not on the weakness of the Defendant’s
case. See also the following EYA Vs. QUDUS (2001) 15 NWLR (PT. 737)
587 C.A; SOKWO Vs. KPONGBO (2003) 2 NWLR (PT. 803) 111 C.A.
PRINCIPLES GUIDING THE GRANT OF DECLARATIONS
The power of the court to grant declaration is almost unlimited but limited
only to the extent that the court has a discretion whether to grant it or not.

Such wide discretion should however be exercised judicially and
judiciously. The following principles guide the grant of declarations.
First and foremost, the court should have the jurisdiction i.e. should be able
to exercise its power to hear and determine issues which fall within its
jurisdiction to grant or refuse to exercise such powers or to grant such relief
in particular circumstances. The court can refuse declaration on the ground
that it has no jurisdiction to entertain the action.
Where the Plaintiff has no sufficient interest in the matter, the court can
also decline the grant of declaration. The court is not interested in issues
which are fictitious or abstract but which are real. It is not enough that the
Plaintiff is eager to obtain a declaration and the Defendant is ready to
oppose it in a substantive cause of action but both parties must have a
substantial interest in the action. Where a Plaintiff’s claim for declaration is
based on facts which are not concrete, the justiciability of the issue comes
into question. Such issues may show that the Plaintiff lacks the capacity to
bring such action.
A Plaintiff seeking a declaration should also have a legal right which the
courts can recognize as it is only such rights that can be the subject of legal
enforcement. Such legal rights may take the form of proprietary interest,
equitable interests etc.
Lord Diplock, after observing the advantage of declaratory action over the
prerogative Order of Certiorari, observed thus:

“The only kinds of right with which courts of
justice are concerned are legal right; and a court
of civil jurisdiction is concerned with legal
rights only when the aid of he court is invoked
by one party claiming a right against another
party to protect or enforce the right or to
provide a remedy against that other party for
infringement of it , or is invoked by either party
to settle the dispute between them as to the
existence of nature of the right claimed…”

A court can also decline to exercise its discretion in granting declaration
where there is a prematurity of issue. For example, it would seem in most
cases that no declaration can be granted in respect of benefits accruing
from a life policy until the assured dies.

Also where at the time of trial, an issue has been overtaken by events, the
courts do not grant declarations. See the old case of EVERETT Vs.
RYDER (1926) 135 L.T. 302, where the Plaintiff who was mere resident in
a Parish and was not a rate payer claimed a declaration that the
appointment of the Defendant as a relieving officer for the parish was
irregular. Subsequently, the defendant’s appointment was regularized.
The court thereafter held that the Plaintiff cannot sue as he was not a rate
payer and moreso where the guardians of the parish whose servant the
defendant was, were not sued.
Similarly, no declaration will be made in respect of the right which existed in
the past though it has been held in a number of cases that a declaration
can be granted even though the relief sought has been rendered virtually
unnecessary by the lapse of the time for the action to come on for trial, if at
the time the action was brought it raised substantial legal issues. (To be
continued).

THOUGHTS FOR THE WEEK

“While the seeming independence of the federal judiciary has played a vital
part in making its actions virtual Holy Writ for the bulk of the people, it is
also and ever true that the judiciary is part and parcel of the government
apparatus and appointed by the executive and legislative branches”.
Murray Rothbard.

LAST LINE

God bless my numerous global readers for always keeping faith with the
Sunday Sermon on the Mount of the Nigerian Project, by humble me, Prof
Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc,
DHL, DA. Kindly come with me to next week’s exciting dissertation.