Declaratory Reliefs: The Duck Test & Reality Check

The certainty in settled principles of law is perhaps one of the cardinal tools that make us determine the course of litigation most times. It infuses a sort of confidence in our oral and written advocacy. It is quite easy to presume, I suppose, that a case fixed for mention cannot be heard on the return date ( Olubusola Stores v. Standard Bank Nig Ltd (1975) NSCC 137; Mbadinuju v. Ezuka (1994) 8 NWLR (pt. 364) 535),
or that a court will abandon a pending application in its file while adjourning for judgement (Animashaun vs. Gov. of Lagos State (2005) All FWLR (Pt. 247) 1565). These settled principles give us logical conclusions to make, akin to the popular abductive reasoning we have in the Duck test. While the duck test is totally unconnected to legal reasoning, logic would seem to favour the test. The test goes thus: 

If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. 

Credits to James Whitcomb Riley

One of those presumptions regarding cases where declaratory reliefs are sought is that those cases must be proved by presenting witnesses in court to establish the plaintiff's entitlement to the declaration. Thus, if it looks like a declaratory action, has claims predicated on declaratory reliefs, then it can only be proved by calling witnesses. This is even so where there is no defence against the suit. The primary principle upon which this procedure is predicated is that a declaratory relief can only be granted on the strength of the plaintiff's case and not on the weakness of the defence, or where no defence is raised or where the defendant even admits the case. It just has to be proved. (Alao v. Akano (2005) 11 NWLR (Pt.935)160). The nature of proof could however accommodate affidavit evidence, if the suit is commenced by way of affidavit evidence. CBN. v. Amao (2010) 16 NWLR (Pt. 1219) 271 S.C.

The knotty area however would be for a suit commenced by way of writ of summons, which requires front loading of statements on oath for witnesses. Can a court grant a declaratory relief based on a statement on oath that is yet to be adopted? or an application for default judgement in a similar suit upon the affidavit evidence attached to the application for default judgement? The Court in NASCO TOWN PLC & ANOR v. NWABUEZE (2014) LPELR-22526(CA) stated this position in the following words:

"Declaratory reliefs should only be granted based on evidence adduced by the Plaintiff. See JULES VS. AJANI (1980) 5 - 7 SC 96; OGOLO VS. OGOLO (2006) 2 S.C. (PT. 1) 61 or (2006) 5 NWLR (PT.972) 173. Therefore a declaratory order cannot be made in a proceeding for judgment in default of defence or Summary Judgment. Consequently, the proper step to take when there is a claim for declaratory relief is for the court to order the Plaintiff to prove his claim by calling evidence. See NIGERIA AIRWAYS VS. AHMADU (1991) 6 NWLR (PT. 198) 992 and ILOBI VS. UZOEGWU (2005) ALL FWLR (PT.285) 595; OGOLO VS. OGOLO (Supra)." Per OSEJI, J.C.A. (P. 27, paras. C-F)

So, here is the snag; Would a court of law be justified in entering a declaratory judgement on affidavit evidence predicated upon a motion on notice for default judgement? Would a court be able to rely on the statement on oath that was not adopted before the court in finding judgement for a declaratory action? A recent answer to that poser has been offered by the apex court in the case of GE I.O. (NIG) LTD V. Q. O & GS LTD (2016) All FWLR (PT. 838) 842 at 864 - 865. At the risk of verbosity, the specific pages are worth reading. The court distinguished cases on declaratory reliefs which are pre-2006 (when the Rules being considered, i. e. Rivers State Rules was still catching up with statements on oath). The decision also acknowledged the fact that written statements on oath are in the nature of affidavit evidence (sic)., a position that I would personally feel the court reached per incuriam. Please click here to view my post on the differences between statement on oaths and affidavits, noting the point that a statement on oath can only be activated upon being adopted before the court. The opposing argument in this wise could be; 'is the statement on oath not duly deposed before a commissioner for oaths as well?". That's an issue for another day. One point to have in mind is that all rules of court now provide for written statements. The conclusion then is, "If it looks like a duck, swims like a duck, and quacks like a duck, then it may probably not be a duck". Has this new position of the Supreme Court eroded the settled principle? Are witnesses required anymore in proving declarations or just merely filing statement on oath?  I will rather leave you with the portion of the judgement and allow you to judge:

"Issue 2 is on the lower court's reliance on the respondent's witness statement on oath to grant declaratory reliefs. In an action for declaration of a right, the plaintiff must satisfy the court by credible evidence that he is entitled to the right he claims.
The claim for declaration cannot be granted on admission of the defendant. See Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299; Ochonma v. Unosi (1965) NMLR 325.
In my view, evidence to support a claim for declaration can be oral or documentary. As rightly held by the lower court, the Rivers State High Court (Civil Procedure) Rules, 2006 provides for the filing of witness statement. In compliance with the rules, the respondent filed a witness statement made on oath. The witness statement is in the nature of affidavit evidence... The requirement that a plaintiff must by credible evidence satisfy the court that he is entitled to the declaratory relief he claims is satisfied by the witness statement made on oath pursuant to the 2006 rules of the Rivers state High Court... Pre-2006 decided cases on the issue of adoption of witness statement are inapplicable because of the requirement for witness statement on oath"