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Mrs. Louisa A. Agu V. Central Bank of Nigeria (2016) LLJR-CA

Mrs. Louisa A. Agu V. Central Bank of Nigeria (2016)

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IGNATIUS IGWE AGUBE, J.C.A.

This Appeal is sequel to the Judgment of the Federal High Court, of Nigeria, Holden at Owerri which Judgment was delivered on the 8th day of April, 2014 in favour of the Plaintiff (now Respondent). It would be recalled that the Respondent as Plaintiff in the Lower Court by a writ of Summons dated 19th day of June, 2008 together with his Statement of Claim also dated the 19th day of June, 2008 and filed same date sought for the following Reliefs:
1. A Declaration that the Defendant being a non-staff of the Plaintiff has no legal right whatsoever to hold on to the Plaintiffs CB 34 Staff Quarters situate at the Central Bank of Nigeria Quarters, Trans Egbu, Owerri Imo State, Nigeria.
2. An Order of Court rendering the continuous occupation by the Defendant of the Plaintiffs Staff Quarter illegal since there is no Tenancy Agreement between the Plaintiff and the Defendant on the one hand, the Plaintiff, the Defendant and the Plaintiffs erstwhile Agent on the other hand.
3. An Order of Court directing the Defendant to vacate the Plaintiffs

Staff Quarters immediately to enable the Staff allocated the Quarters under the Monetization Policy of the Federal Government of Nigeria take immediate occupation of same as the staff had already paid up and no longer enjoys housing allowance from the Plaintiff.
4. The sum of N1,560,000.00 (One Million Five Hundred and Sixtythousand Naira) only, being rent arrears from year 1996 to year 2007.
5. The sum of N3m (Three Million Naira) only as general damages for trespass.”

Accompanying the Originating processes as aforestated are Annexures A and B documents captioned NOTICE OF OWNERS INTENTION TO APPLY TO RECOVER POSSESSION DATED THE 1ST DAY OF JUNE 2004 AND IMO STATE HOUSING CORPORATION CONFIRMATION OF OWNERSHIP RE: CENTRAL BANK HOUSES dated 22nd Oct, 2003; Witnesses Summons on Oath and written Address in support of her case.

Upon being served with the Plaintiffs Originating processes and the annexed documents the Defendant gave NOTICE OF ENTRY OF CONDITIONAL APPEARANCE dated and filed on the 26th of June, 2008. It would appear from what can be seen at page 38 of the Records

that the Defendant filed an Application for enlargement of time on the 12th day of October 2010 for the Defendant to file her statement of Defence and Counter-Claim together with accompanying documents and to deem her said Statement of Defence and Counter-Claim as duly filed and served on the Plaintiff (now Respondent).

By her said Counter-Claim, the Defendant (now Appellant) sought for the following Reliefs:
1. A declaration that the hasty and forceful eviction or ejection of the Counter-Claimant by the Defendant upon the striking out of its suit without waiting for an order of Court was illegal, unconstitutional and a breach of implied covenant in leases.
2. The sum of N10 Million Naira being special damages.
PARTICULARS OF SPECIAL DAMAGES:
(i) Cost of repairs, Renovations and making the premises habitable at the instruction of the Defendants Agent N2.5 Million Naira.
(ii) Cost of properties damages in the course of the unlawful eviction of N7.5 Million Naira.
3. General, punitive and exemplary damages suffered in the cause of unlawful eviction N5 Million Naira.
4. Interest

at the rate of 30% annually until the Judgment sum s satisfied.

The Statement of Defence and Counter-Claim were also accompanied by the Witnesses Statements on Oath of Mrs. Louisa A. Agu (the Defendant/Counter-Claimant, a list of witnesses sought to be called and documents sought to be relied upon at the trial.

Upon being served with the Defendants processes, the Plaintiff through one Favour Chibuzor Ndubinsi (Miss) the Litigation Secretary of the Law Chambers of Chief George O. Aigbomian, the learned Counsel for the Plaintiff deposed to what was termed.

FURTHER AFFIDAVIT IN REPLY TO THE DEFENDANTS STATEMENT OF DEFENCE.
On the 15th April, 2013, the Plaintiff after incessant adjournments, filed a motion on Notice pursuant to Order 8 Rule 1 and Order 19 Rules 2 and 15 of the Federal High Court (Civil Procedure) Rules 2009.and under the inherent jurisdiction of the trial Federal High Court. The Motion dated 12th April, 2013 prayed for entry of Judgment for the Plaintiff and an Order allowing the Plaintiff/Applicant to prove her Claim and a further Order striking out the Counter Claim of the Defendant for want of

diligent prosecution. That Motion was supported by a fifteen paragraph Affidavit a Written Address and an attached Plaintiffs final Address in Support of the case. After series of a adjournments, the learned trial Judge set down the Application for hearing and same was heard in default of appearance of the Defendant and her Counsel on the 29th of October, 2013 granting same the prayers in the Motion paper at page 158 of the Records as follows:
COURT: Order as prayed. It is the Plaintiff in this case is hereby allowed to prove his case as prayed in second prayer of this application.
The third prayer will be addressed at the appropriate time.
COURT is not inclined to grant the 1st prayer out right as the grant of 2nd prayer out right will be more effective. Plaintiffs Counsel assures the Court that his witnesses will be available on 21st of November. Matter adjourned to 21st day of November, 2013. PW1 Mrs. Ijeoma Nwabueze adopted her witness Deposition dated 15th April, 2013 and filed same date and the case was adjourned to the 29th January, 2014 for continuation of trial. PW2 Osuji Peter Iheanyichkwu was called on the said

29th January, 2014 and he adopted his witness Deposition dated and filed on the 28th February, 2012 as his evidence also in the absence of the Defendant and her Counsel. There after the Court further adjourned the case to 19th March, 2014 to enable the PW3 who was then a nursing mother to be called, and for address.

Came that 19th day of March, 2014 the said PW3 Mrs. Edith Uba testified that she filed a witness Deposition on the 28th February, 2012 which adopted and urged the trial Court utilize in the case. According to her, in Paragraphs 9 and 10 of her said witness Deposition she Claimed she agreed with the Defendants to pay her N300,000.00 to vacate the property CB 34. She paid the money through the son-in-law and the payment was acknowledge.

Aigbonian Esq, for the Plaintiff sought to tender the Acknowledgment Receipt (Original hand written) from Chibuzor Alban who claimed to have received the sum of N300,000.00 from Mrs. E. Uba on behalf of Mrs. L. Agu; and same was admitted and marked Exhibit A1 as forming part of the written Deposition.

Aigbonian ESQ:- Thereafter sought for the Defendant to be foreclosed from cross

examination of the three (3) witnesses for the Plaintiff and the Court recorded that: The defence is hereby foreclosed from cross-examing the Plaintiffs witnesses. Thereafter the said learned Counsel for the Plaintiff sought to adopt his final written Address in Support of the Plaintiffs Claim which application was granted and the learned Counsels final Address in the matter dated the 17th of March, 2014 and filed same date was duly so adopted with the leave of the Honourable Court as Plaintiffs argument in the matter Judgment was reserved for Tuesday 8th April, 2014 on which date it was duly so delivered thus culminating in this Appeal. Pages 166 – 158 -165 and particularly at Pages 166 – 172 of the Records.

To demonstrate her dissatisfaction with the Judgment of the Lower Court, the learned Counsel for the Defendant (now Appellant) gave Notice of Appeal dated and filed on the 11th day of April, 2014 with three (3) Grounds herein reproduced below without their particulars as follows:-
GROUNDS OF APPEAL:
GROUND 1:
The Court below lacked the Jurisdiction to have

entertained and determined SUIT NO. FHC/OW/CS/57/2007 CENTRAL BANK OF NIGERIA VS. MRS. LOUISA AGU.
GROUND 2:
That the proceedings of the Court below which led to the Judgment of the Court below delivered on 8th April, 2014 were conducted in total breach of the Appellants right to fair hearing and thus a nullity.
GROUND 3:
That the Judgment of the Lower Court was against the weight of evidence.”

Following the transmission of the Record of Appeal from the Lower Court to this Honourable Court, Briefs of Argument were exchanged by the respective learned Counsel for the parties.

In the Appellants Brief undated but filed on the 4th day of September, 2014 and settled by Isah Seidu Esq, three Issues couched as follows were distilled from the Three Grounds of Appeal;
1. WHETHER THE COURT BELOW POSSESSES THE REQUISITE JURISDICTION TO HAVE ENTERTAINED THE SUIT HAVING REGARDS TO THE SUBJECT MATTER AND PARTIES BEFORE IT? (Formulated from Ground ONE (1) of THE NOTICE OF APPEAL at Pages 97 to 98 in the Record)
II. WHETHER THE DEFAULT JUDGMENT OF THE COURT BELOW IS NOT A NULLITY IN

THE FACE OF THE FACT THAT THE PROCEEDINGS WERE CONDUCTED BEHIND THE APPELLANT OR COUNSEL WITHOUT SERVICE OF HEARING NOTICES ON EITHER THE APPELLANT OR COUNSEL? (Formulated from Ground Two (2) of the Notice of Appeal at Pages 98 at 99 in the Record).
3. WHETHER THE RESPONDENT AT THE COURT BELOW PROVED ITS CASE TO ENTITLE IT TO JUDGMENT? (Formulated from Grounds three (3) of the afore-stated Notice of Appeal).

On the other hand, G. O. Aigbomian, Esq, who settled the Brief of the Respondent distilled the following Issues:-
1. WHETHER THE COURT BELOW POSSESSES THE REQUISITE JURISDICTION TO ENTERTAIN AND DETERMINE THE SUIT?
2. WHETHER THE PLAINTIFF/RESPONDENT PROVED ITS CASE AND WERE ENTITLED TO JUDGMENT? HIMSELF IN ANY WAY AS TO THE STANDARD OF PROOF?

Before delving into the Arguments of the Issues as formulated for determination, it is apt this juncture to state in sum, the facts in support of each of the parties case.

The case of the Appellant is that she was let into the property known as CB34 Trans Ebgu Estate, Owerri by the Respondents Firm of Estate Management,

Chimwuba Odumodu & Co. and the Appellant became a Tenant of the Respondent in the above property which was then part of the Respondents Staff Quarters. The Respondent allegedly changed its said Firm of Estate management Agent when the Appellant was already in possession of the property some times in 1998 which development was not communicated to the Appellant who, according to her, was never aware to deal with the said Agent by paying rent and demanding the refund of monies expended on renovation of the property.

Subsequently, the said property was sold to Late Mr. Ubah, a former Staff of the Respondent prior to the institution of the suit now on appeal after which the Respondent approached the Appellant to vacate the subject matter of the Appeal as same had long been sold but the Appellant resisted on the ground that she was yet to be refunded monies spent in the renovation of the property which was agreed to be converted to rent if not exhausted at vacation of the said property as was agreed by the Appellant and the Respondents erstwhile Estate Agent.

According to the Appellant, her tenancy was determined midstream, hence, the

need to refund the balance of the monies expended in the renovation of the subject matter of the Suit/Appeal the refusal of the Respondent to refund the sum of N300,000.00 to the Appellant which necessitated the Appellants holding unto the possession of the said property. Upon the attempted forceful ejection of the Appellant by the Respondent without due process and the resistance by the Appellant, she petitioned the Nigeria Police Force for protection and she subsequently resorted to the High Court for judicial protection.

It was also her case that while the instant suit was pending the widow of Mr. Ubah approached the Appellant and the dispute was amicable settled and the sum of N300,000.00 (Three Hundred Thousand Naira Only) was paid to her (Appellant) who eventually vacated the property. The Appellant was said to have participated in the proceedings of the Court before the Honourable Justice F. A. Olubanjo, because Appellant and/or Counsel were seised of the said proceedings. The Appellant claimed that the Appellant who travelled out of the country on the ground that the matter had been amicably resolved between her and the owner of CB 34 Trans

Egbu Estate Owerri (Mr. Ubah), was ambushed by the Counsel to the Respondent who conducted the proceedings in the absence of the Appellant and/or Counsel without service of hearing Notice on either Appellant on record, her Counsel even though ordered by the Honourable Court Presided by the Hon. Justice O. O. Oguntoyibo on the 6th November, 2012 and 28th January, 2013 respectively.

Consequent upon the non service of hearing notices as ordered by the Court below, the Appellant claims that she never had the opportunity of participating in the proceedings before the Hon. O. O. Oguntoyibo who consequently delivered a Default Judgment against the Appellant even though the Address for service of the Appellant was never confusing nor was any party in doubt as to Address for service as furnished by the Records evidencing the Address were alluded to as No. 10 Omoku Street, D Line, Port Harcourt to insist that none of the Hearing Notices meant for service on the Appellant or Counsel were served at the said Address which led to a grave miscarriage of Justice against the Appellant behind whom proceedings were conducted and Judgment given against in breach of her right

to fair hearing.

On the subject matter of the case the Appellant also pointed out that the Court below was never in doubt that it pertained to Recovery of Premises as evident from the Reliefs claimed by the Respondent in its Statement of claim and so granted by the Court at Page 172 of the Records.

Finally, the Respondent pointed out that from the Record, the ownership of the substratum of the case (No. CB34 Trans Egbu, Owerri) had already vested on the Late Mr. Ubah and not on the Respondent who had no more interest on the said property.

The case for the respondent who was the Plaintiff is that the case bordered on the Management and control of the Respondents staff Quarters which the Appellant (the Defendant) in the Lower Court occupied without paying rent. According to Respondent, there was no execution of Tenancy Agreement and for being in possession for Over 11 years thereby depriving the Staff Allotte of the Quarters of Possession, the Respondent instituted the action against the Appellant. The Respondent claimed that the Appellant was let into No. CB34 Staff Quarters of the Respondent by its erstwhile Estate Agent, a firm of

Estates Surveyors and Valuers, Messrs Chinwuba & Co. engaged by the Respondent to manage its Estate in Owerri. the services of Estate Agent was however terminated in 1999 for letting out the Respondents Estate (Staff Quarter) to non staff amongst others contrary to the terms of the Agreement reached between the Firm and the Respondent.

According to the Respondent, the Appellant claimed to have paid an initial rent of N60, 000.00 (Sixty Thousand Naira) only in April, 1997 and took possession of the property which information was not communicated to Respondent nor was any money remitted to the Respondent as Rent. The Appellant also claimed to have renovated the said property with the sum of N395, 000.00 (Three Hundred and Ninety-five thousand Eight Hundred Naira) only and therefore refused to pay rents to the Respondent for 11 (Eleven) years whereas, the Respondent was also not aware of the renovation of the Staff Quarters by the Appellant.

Mean while, the Appellant was said to have taken out a Suit No. HOW/98/200 against the Respondent at the High Court which was struck out for lack of Jurisdiction upon the Respondents Preliminary

Objection. The Respondent in consequence of the above filed Suit No. FHC/OW/CS/57/2007 against the Respondent at the Federal High Court, Owerri where Judgment was delivered in favour of the Respondent on the 8th day of April, 2014. While the said Suit was pending in the Federal High Court Owerri, the Appellant filed in Statement of Defence and Counter- Claim and sometime in August, 2008 approached the wife of their Staff (now late) who bought the property CB34 under the Federal Government Monetization Policy (Mrs. Ubah) without the respondents consent/knowledge and demanded the sum of N300,000.00 (Three Hundred Thousand Naira) only to enable the Appellant relocate and give possession to Mrs. E. Ubah whereas the suit at the Federal High Court was still pending along with her Counter claim.

Appellant was paid the said sum of N300,000.00 (Three Hundred Thousand) by Mrs. E. Ubah through one Hon. Chibuzor Abanno, JP vide the Annexed Acknowledgment Receipt and upon the Appellants receipt of this money she delivered up possession of the property in question and she and her Counsel Isah Saidu Esq; stopped coming to Court thereby abandoning their

counter claim inspite of several Hearing Notice served on them. It was however when the Respondent got information that the Appellant had given up possession to Late Mr. Ubahs wife, that the Respondent invited Mrs. E. Ubah to confirm the position and at this juncture it dawned on the Respondent that the Appellant had played a fast one on it by abandoning the Suit and refusing to pay the accrued rents on the property for over 11 years that the Appellant was in possession. Mrs. Ubah was said to have testified as a witness.

Finally the Respondent pointed and that the Appellant who claimed not to have been aware of the pending Suit at the Federal High Court suddenly resurfaced in Court on 8th April, 2014 when Judgment was delivered.

ARGUMENTS OF COUNSEL ON THE ISSUES FORMULATED.
ISSUES 1 OF THE APPELLANT AND RESPONDENT: WHETHER THE COURT BELOW POSSESSED THE REQUISITE JURISDICTION TO HAVE ENTERTAINED AND DETERMINES THE SUIT HAVING REGARDS TO THE SUBJECT-MATTER AND PARTIES BEFORE IT?
AND
WHETHER THE COURT BELOW POSSESSES THE REQUISITE JURISDICTION TO ENTERTAIN AND DETERMINE THE SUIT?

Arguing this

Issue the learned Counsel for the Appellant cited Nwosu V. Imo State Environmental Protection Agency (1990) 2 NMLR 688 at 726; where the term “Jurisdiction was defined and expanding further the definition of Jurisdiction and placing reliance on National Bank of Nigeria Ltd. V. Shoyoye [1977] 5 S. C 181 at 190 -191. CRUTEC V. Obeten (2011) 15 NWLR (Pt.127) 588 C. A; Olowu V. Nigerian Army (2011) 18 NWLR (Pt.1277) 650 S. C. And Nasir V. C. S. C., Kano State [2010] 5 NWLR (Pt.1190) 256; on the trite position of the Law that Jurisdiction can be raised at any state of proceedings submitted on the authority of Tukur V. Govt. of Gongola State (1989) 4 NWLR 517 at 549 urged us to take Judicial notice of the Writ of Summons and Statement of Claim in order to determine if the Court below was vested with the Jurisdiction to entertain and determine the Suit now on appeal.

The learned Counsel recited the conditions which must exist concurrently in order for a Court to be vested with jurisdiction as was decided in Madukolu V. Nkemdilim [1962] 2 NSCC at 374; A. G. Federation V. A. G. Abia State & Ors. [2002] 6 NWLR (Pt.763) 264 AND Drexel energy

& Natural Resources Ltd. V. TRANS INTL BANK LTD. [2008] 18 NWLR (Pt.1119) 399 at 417; the need to first identify the cause of Action and Relief sought from the Court as also laid down in C. H. S.C. Ltd. V. MLGFO (NIG.) LTD. (2009) 11 NWLR (Pt.1153) 611 at 639; the need also to identify the enabling law that vests jurisdiction on the Court, in the light of the Relief(s) sought by the Plaintiff in the Statement of Claim in determing the jurisdiction of a Court decided in Officer in charge, G. P. G. V. Gudu (2010) 2 NWLR (Pt. 1177) 148 at 162; to submit that consequent of the above Statements of the law it became, necessary to have recourse to the Reliefs sought by the Plaintiff/Respondent in the Lower Court which he reproduced.

Having reproduced the said Reliefs, the learned Counsel took the view that the Court below was never in doubt as to the subject matter and the Reliefs sought by the Respondent as per its Statement of Claim as evident from the Judgment delivered on the 8th April, 2014 by awarding against the Defendants, the Plaintiffs Claim as enumerated.

It was therefore submitted that on the face of the Originating processes the

Federal High Court lacks the subject matter jurisdiction in entertaining and determining the subject-matter of this suit which emanated from recovery of premises which is outside the enumerated and limited Jurisdiction of the Federal High Court under Section 251 of the 1999 Constitution of the FRN (as Amended) 2011. for the above submission we were referred to Onuorah V. K. R. P. C. Ltd. (2005) 6 NWLR [Pt.921] 393 at 405 S.C; Obiuweubi V. CBN (2011) 2 – 3 SC; (Pt. 1) 46. NEPA V. Edegbero (2002) 18 NWLR (Pt.798) 79 at 99 -100; in submitting that the Supreme Court in departure from the latter case held that in the determination of the jurisdiction of the Federal High Court, the subject matter should be looked at and not only the parties.

He further submitted by reference to the case of NNPC Vs. SLB Consortium Ltd (2008) 16 NWLR (Pt.1113) 297 at 321; Per Galinje, JCA; who restated that NEPA V. Edegbero (supra) had been over ruled and the consistent position of the Supreme Court in PDP V. SYLVA (2012) 13 NWLR (Pt.1316) 85 at 138 Paras. C -E Per Rhodes Vivour, J. S.C; that the party and subject matter must Co-exist in order to vest the Federal

High Court with exclusive jurisdiction.

The learned Counsel also referred us still on this vexed Issue of Jurisdiction, to Adetayo & 20 Ors. V. Ademola & 2 Ors. (2010) 15 NWLR (Pt. 1215) 169; where the Parties were agencies of the Federal Government but the Supreme Court still held that the Federal High Court lacked the Jurisdiction because the subject matter thereof did not fall within the exclusive jurisdiction of the Federal High Court, to reiterate that it will accord with the law to assert that the Federal High Court lacked the jurisdiction in this Suit as the subject matter dwells on recovering of premise which is not the contemplation of Section 251 of the 1999 Constitution although the Respondent herein is an Agency of the Federal Government, and that we should so hold.

On the position of the law that where the fundamental issue of jurisdiction is evident on the face of the Originating process, the Court ought to raise it suo motu in that proceedings conducted without Jurisdiction is a nullity and waste of judicial time we were again referred to Mobil Oil Producing Nig. Ltd V. LASEPA (2003) FWLR (Pt.137) at 1052 S.C. and Osakue V. F.

C. E. Asaba (2010) 10 NWLR (Pt.1201) 1 at 23 were the Supreme Court suo motu raised the issue of Jurisdiction of the trial Court given the Provision of Section 251 of the Constitution of the Federal Republic of Nigeria, and urged us to hold that the trial Federal High Court had lacked the jurisdiction to have entertained the Suit and ought to have struck out the Respondents Suit as was held in Fasakin Foods (Nig.) Co. Ltd. V. M. B. Shosanya (2006) ALL FWLR (Pt. 320) 1059 at 1077 Paras. F – H.

In the alternative and on the assumption that we hold that the Federal High Court had the jurisdiction to entertain and determine the Suit, the learned Counsel to the Appellant still maintained that the Court below lacked the jurisdiction to have entertained and determined the Suit, as proper parties were not before it since according to Counsel, it is not in dispute that as at when the Suit was instituted in the Court below on the 19th day of June, 2008, CB34 the subject matter of the Suit now on Appeal had long been sold to late Mr. Ubah, a former Staff of the Respondent. (Pages 70 -77 of the Records refer).

From the foregoing, it was submitted by

the learned Counsel for the Appellant that the Respondent ab inito lacked the locus standi to have instituted the instant Suit as the widow of the late Ubah with whom the Appellant amicably resolved the dispute reserved the right to have instituted the action now on appeal, the present Respondent herein being a busy-body. For the above submission, the learned Counsel for the Appellant commended to us Amuda. V. Ajobo (1995)7 NWLR (Pt.406) 170 at 182 Paras. E – F on the effect of sale of property as in this case, on Locus standi of the seller. The cases of Oloriode V. Oyebi (1984) 1 SCNLR 390 at 406, Ironbar V. F. M. F. (2009) 15 NWLR (Pt.1165) 506; Onwunalu V. Osademe (1971) 1 ALL NLR (Pt. 1) 14; Ekpere V. Aforije (1972) 1 ALL NLR (Pt.1) 220 and Oloriode V. Oyebi (1995) 7 NWLR (Pt. 406) 170; were further relied upon in urging us to hold that the Court below lacked the jurisdiction to entertain the suit now on appeal as the proper parties were not before it and strike out the Suit for want of jurisdiction. We finally on all the authorities cited and relied upon particularly Fasakin Foods (Nig.) Ltd v. M. B. Sosanya (2006) ALL FWLR (Pt.320) 1059 at 1077 Paras.

F -H; to resolve this Issue in favour of the Appellant.

ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER ONE (1) OF THE RESPONDENT.

In his argument which is a reaction to the arguments of the learned Counsel to the Appellant above reproduced, G. O. Aigbomian Esq, for the Respondent answered the question posed by the Issues in the affirmative on the grounds that the Respondent is an Agency of the Federal Government and that the Issue in Litigation arose from the Administration, Management and Control of the Respondents property, and accordingly the Federal High Court/Lower Court possessed the requisite jurisdiction to adjudicate on the matte pursuant to Section 251 (1) (P) (q) and (r) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

According to the learned Counsel for the Respondent, with the combined effect of Part II Section 7 of the Federal High Court Act, Chapter F12, the Federal High Court has jurisdiction having regards to the facts of the case. He referred us to N.R.C. V. Nwanze (2008) 4 NWLR 4 NWLR (Pt.1076) 92 (C.A) to submit that it is the Respondents decision to regain

possession of the property being occupied by the Appellant and therefore the validity of the Administrative decision of the Respondent, being an Agency of the Federal Government, as well as the executive decision of the Federal Government to monetize certain benefits of Public Officers as envisaged by the Section 251(1)(p)(q) and (r) of the 1999 Constitution of the Federal Republic of Nigeria. He conceded that it is trite that when considering whether the Federal High Court possesses jurisdiction to adjudicate on a matter before it, one must consider the parties to the litigation as well as the subject matter of the Plaintiffs claim. He however contended that the argument of the learned Counsel for the Appellant that the Lower Court lacked the requisite Jurisdiction to entertain the Plaintiffs claim is completely out of place.

RESOLUTION OF ISSUES 1 OF THE APPELLANT:
The jurisdiction of the Federal High Court and the subject matters upon which it can exercise such jurisdiction have been spelt out in Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended).
However, the interpretation of the above

Section has generated considerable controversy such that notwithstanding the avalanche of Judicial commentaries and decisions from legal pundits and even the Apex Court, it would appear that the controversy has not yet abated as it has reared its ugly head once again herein this Appeal. Our consolation in this Appeal is however the salutary positions the learned Counsel for both the Appellant and Respondent have taken in line with the decision in Onuorah V. K. R. P. C. Ltd. (2005) 6 NWLR (Pt.921) 393 at 405 S. C. which was re-stated and followed by the Apex Court in the recent case of OBIUWEUBI V. CBN (2011) LPELR-2185 (SC) Per Rhodes- Vivour, JSC delivering the lead Judgment of the Court reasoned thus at page 20 Paras. C – F;
For the Federal High Court to have jurisdiction under Section 230 of the 1979 Constitution or Section 251 of the 1999 Constitution the following must co-exist: (a) The Parties, or a party must be the Federal Government or any of it agencies; (b) Subject matter of litigation. That is to say jurisdiction is the combination of parties and subject matter. The words used in this piece of legislation are plain

as plain can be and have been interpreted by this Court on several occasions. See: NEPA V. Edegbero (2002) 18 NWLR (Pt. 788) P. 79; Oloruntoba-Oju V. Abdul-Raheem & 3 Ors. (2009) 5- 6 SC (Pt.11) 57.”
Following the above decision, the guidelines for the determination of the exclusive Jurisdiction of the Federal High Court as donated to it by Section 251 of the Constitution, of FRN 1999 (as amended) have been generously availed us once more by the Supreme Court Per the self same erudite law Lord, Rhodes-Vivour, JSC and I shall once more take the liberty with due reverence to quote him in extensor inter alia as he put it P. D.P. V. Sylva [2012] 13 NWLR (Pt.1316) 86 at 138 Paras. C – F:
Section 251 of the Constitution confers exclusive jurisdiction on the Federal High Court for the items listed in the Section. All items not listed in the Section are to be heard and determined by the State High Court. When the jurisdiction of the Federal High Court is in issue, the following must co-exist:
(a) The parties or party must be Federal Government or its agency.
(b) Subject matter of the litigation satisfying the above is

not the end of the matter. The Pleadings of the Plaintiff must be carefully examined so as to understand the facts and circumstance of the case in order to determine if the claims are within the jurisdiction of the Court. It is clearly not enough only to have an agency of the Federal Government as a party before the Federal High (sic) has jurisdiction. Subsection (r) of Section 251(1) of the Constitution states that:
(r) any action or proceeding affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.
Going by the above quoted authorities and in view of the fact that the Appellant anchored its claim under Section 251(1)(p),(q) and (r) of the Constitution which provides as follows:
251(1) Notwithstanding anything to the contrary contained in this Constitution and addition to such other jurisdiction as may be conferred on upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in Civil cases and matters—–
(p) the administration or management and control of

the Federal Government and any of its agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

It is necessary to have a careful scrutiny of the Respondents Statement of Claim which contains the pleadings as well as the Reliefs sought in order to determine whether the Respondents Claim met or meets with the criteria set out by their Lordships of the Supreme Court for the conferment of Jurisdiction of the Federal High Court sitting at Owerri Coram: O. O. Oguntoyinbo, J.

Now a look at Pages 3-5 of the Records where the Plaintiff/Respondents Statement of claim and his pleadings and Reliefs claimed are recorded, would reveal that it pleaded in Paragraph 1 that:
1. The Plaintiff is a creature of a Statute and although the Statute creating it has not been stated, it is a matter for judicial

notice that the Respondent is the Apex Bank of the land and undoubtedly an Agency of the Federal Government. Accordingly, the Party jurisdiction is settled prima facie.”

On the subject matter of the Suit it was pleaded in Paragraphs 2 – 17 as follows:
2. The Defendant claimed to be a tenant at the Plaintiffs Estate, No. CB 34 Central Bank Housing Estate, Trans Egbu Owerri, Imo State of Nigeria.
3. The Defendant Claimed to have been let into the 3 Bedroom Bungalow at the Plaintiffs Estate by its erstwhile firm of Estate Management, Chinwuba Odumodu & Co. whose contract was terminated immediately the Plaintiff discovered that some non-staff of the Plaintiff were given accommodation in the Official Quarters contrary to the terms of Agreement between the Plaintiff and the Estate Agent.
4. It was as a result of this breach of contract and other unethical activities on the part of the Estate Agent of the Plaintiff that constrained the Plaintiff to terminate the contract between them.
5. The Defendant never paid any rent or money whatsoever to the Plaintiff neither did the

Plaintiffs erstwhile Agent, Chinwuba Odumodu & Co. remitted any rent the Defendant claimed to have paid to the Plaintiff from 1996 till when the contract between the erstwhile Agent and the Plaintiff was terminated. The Plaintiff from year 2001 when the tenancy was determined till now (the year 2007).
6. The Defendant to the best of the Plaintiffs Knowledge was never a tenant of the Plaintiff notwithstanding any impression created otherwise by the Defendant in occupying the Plaintiffs Official Quarters, situate a CB34 Trans Egbu, Owerri Imo State with the connivance of the Plaintiffs erstwhile Agent, Chinwuba Odumodu and Company.
7. The Official quarters is strictly for members of Staff of the Plaintiff. The Houses were directly purchased from the Imo State Housing Corporation strictly as Staff Quarter. See confirmation of Ownership as Annexure B.
8. (sic) The Plaintiff or any person or firm for that matter, and in any event signed any Tenancy Agreement between itself and the defendant neither was there any Tripartite Agreement subsisting between the Plaintiff, Odumodu & Co.

and the Defendant.
9. The Plaintiff is not into real estate business for the Defendant to think that the Estate was for rentage to the general public.
10. The Defendant was degradedly Chinwuba Odumodu & Co. the erstwhile Estate Agent to the Plaintiff and upon realization of this fact, the Defendant tried to enter into correspondence with the Plaintiffs erstwhile Agent. These correspondences were not communicated to the Plaintiff.
11. It was as a result of the fraudulent nature of the Defendant and Plaintiffs Erstwhile Agent that the Defendant purported to have paid a paltry sum of N30,000.00 as an annual rent of a Bungalow which rental value was N100,000.00 (One Hundred Thousand Naira) or more in 1996.
13. The Defendants transaction with Plaintiffs erstwhile Agent was private and tainted with illegality and never created any Tenancy between the Plaintiff and the Defendant in any way.
14. The Plaintiff at all times, and its staff have over the years been going to affect repair/works on the bungalow and surrounding structures albeit under serious resistance by the Defendant and

her Agents.
15. The Defendant took out a suit No. HOW/98/2001 at Imo State High Court which lacked jurisdiction to entrain same by Virtue of Section 251(1) (p), (q) and (r) of the Constitution of the Federal Republic of Nigeria, 1999 which is a deliberate attempt by the Defendant to continuously hold on to the Plaintiffs Quarters meant for staff members.
16. The Plaintiff had earlier taken out Suit No. OW/322/2004 at the Chief Magistrate Court Owerri for recovery of premises, but was struck out for abuse of Court process as Suit No. HOW/98/2001 was still subsisting at the State High Court on same issues.
17. The Defendants action has seriously disturbed and delayed the Plaintiffs handing over of the Quarters to the member of staff who was allocated the building under the Monetization Policy of the Federal Government of Nigeria thereby causing the Plaintiff enormous losses economically and otherwise by her continuous occupation of the premises.”

As for the Reliefs sought, same had already been reproduce earlier at the beginning of this Judgment but it suffices to state that the

Plaintiff sought for a Declaration that the Defendant not being a member of Staff of the Plaintiff/Respondent (Central Bank of Nigeria) had no legal right whatsoever to hold on to the Plaintiffs No. CB 34 Staff Quarters situate at the Central Bank of Nigeria Quarters, Trans Egbu, Owerri Imo State Nigeria;
(2) An order of Court rendering the continued occupation of the said Staff Quarters illegal since there was no Tenancy Agreement between the Plaintiff and the Defendant on the one hand, the Plaintiff/Respondent, and the Defendant and Plaintiffs erstwhile Agent on the other hand.
(3) An Order of Court directing the Defendant/Appellant to vacate the Plaintiffs Staff Quarters immediately to enable the Staff allocated the Quarter under the Monetization Policy of the Federal Government of Nigeria take immediate occupation of same as the Staff had already paid up and no longer enjoyed Housing Allowance from the Plaintiff.
(4) The sum of N1,560,000.00 (One Million, Five Hundred and Sixty Thousand Naira) only, being rent arrears from year 1996 -2007.
(5) The sum of N3m (Three Million Naira) only as general damages

From

the pleadings which to my mind is a classical case of equivocation in that ordinarily, the claim of the Plaintiff can be said to be in trespass since the said Plaintiff/Respondent alleged that the Appellant was never its tenant she having occupied the subject matter illegally with the tacit connivance of the Respondents Estate Agent Chinwuba Odumodu & Co. However, by the claim of N1,560,000.00 Arrears of Rent, the Plaintiff who purported in Paragraphs 6 and 9 of the Statement of claim that the Defendant was never a tenant of the Plaintiff notwithstanding the impression created otherwise by her occupation of the Plaintiffs Staff Quarters and that the Plaintiff is not into Real Estates Business has brought this case within the realm of a simple contract between landlord and Tenant which in other words would bring in the application of the Rent control and Recovery of Premises Law of Imo State.

Viewed from the background of the Provision of Section 251(1) (p) (q) (r) and criteria laid down by the Supreme Court in the cases earlier on cited for the conferment of jurisdiction on the Federal High Court, it would appear that since the

Plaintiff/Respondent sought for a Declaration in their first Relief that the Appellant was not entitled to hold on to No. CB 34 Staff Quarters (the Property of an Agency of the Federal Government, which management and control was in controversy). The Federal High Court was seised with both the Party and subject matter jurisdictions to entertain and adjudicate on the Plaintiffs claim under Paragraph (p) of Section 251(1) of the Construction of the Federal Republic of Nigeria, 1999.

Apart from Paragraph (p) thereof the Federal High Court can also entertain the Plaintiff/Respondents Suit under Paragraph (r) of Section 251(1) of the Constitution in that the Plaintiff sought for a Declaration and injunction affecting the validity of the executive or administrative action or decision of the Central Bank as far as the Monetization Policy of the Federal Government in respect of Housing Allowance of the Plaintiffs Staff was concerned.

Finally, assuming but not necessarily conceding that the afore-stated paragraphs do not apply, the second proviso to Section 251(1) of the Constitution which states inter alia that:
Provided that

noting in the provisions of Paragraphs (p), (q) and (r) of this sub-section shall prevent a person from seeking redress against the Federal Government or any of its agencies in action for damages, injunction or specific performance where the action is based on any enactment, law or Equity.”

There is also the further claim in special damages of N10,000,000.00 (Ten Million Naira) only and General, punitive and exemplary damages of N5million Naira. Can be invoked in favour of the Plaintiff/Respondent particularly where as in this case the Defendant/Appellant also Counter-Claimed for a Declaration that the hasty and forceful ejection or eviction of the counter claimant by the Defendant to the Counter-Claim was illegal, unconstitutional and a breach of the implied covenant in leases.

For the avoidance of doubt, the second proviso to Section 251(1) as quoted earlier on had since been given judicial interpretation and imprimatur by the Supreme Court in NEPA V. EDEGBERO (2002) 18 NWLR (Pt.798) 79 at 95 Per Ogundare, JSC who held that the proviso to those Paragraphs (p), (q), (r) of Section 230(1) now Section 251(1) of the 1999 Constitution of the

Federal Republic of Nigeria, does not minimize the jurisdiction of the Federal High Court in respect of all matters where the Federal Government or any of its agencies is a party nor does it confer jurisdiction on the State High Court to exercise concurrent jurisdiction on such matters with the Federal High Court. The provision according to his Lordship rather extended the exclusive jurisdiction of the Federal High Court to actions for damages, injunction or specific performance.
See also Adah V. NYSC (2002) ALL FWLR (Pt.223) 1858 at 1857; where it was held in respect of the proviso to Paragraphs (p), (q) (r) and (s) that although the Federal Government or any of its Agencies may be sued in damages, injunction or specific performance.. the action will have to be commenced in the Federal High Court.”

With the decisions in the above authorities all the authorities cited by the learned Counsel for the Appellant were cited out of context although they may have been decided on their perculiar facts and circumstances. The learned Counsel for the Appellant cannot therefore seriously contend that the lower Federal High Court

lacked the jurisdiction to entertain and determine the Plaintiff/Respondents claim on the ground of lack of concurrent existence of the Party/Parties and subject matter of the Litigation.

I have carefully perused and analyzed the pleadings of the Plaintiff/Respondent as dictated by the dicta of my Noble Lord Rhodes-Vivour, JSC In Obiuweubi V. CBN (Supra) and PDP V. Sylva (supra) and from the facts and circumstances therein, the Federal High Court had jurisdiction whether in the realm of Rent control and Recovery premises or the Tort of Trespass which I think should be the cause of action, since the Plaintiff is an Agency of the Federal Republic of Nigeria and the subject-matter has to do with the management and control of the Plaintiffs Staff Quarters situate at No. 34CB Trans Egbu Owerri, Imo State within the jurisdiction of the Court.

On the alternative submission of the learned Counsel for the Appellant for which there was no reply from the Respondents Counsel that the Lower Court still lacked Jurisdiction on the ground that the proper parties were not before the Court because as at the time when the Suit was instituted at

the Court below on the 19th of June, 2008 CB34 the subject matter of the instants Appeal had been sold to the late Mr. Ubah a former Staff of the Respondent.

In the course of the argument of the learned Counsel; for Appellant, we were referred to pages 70 -77 of the Records. I have also taken time to look at those pages of the Records. At pages 70 -72 which is the Statement on Oath/Witness Deposition of Mr. Peter Osuji (PW2) then a Principal Manager of the Central Bank of Nigerian, Owerri Branch who deposed the facts which he adopted on the 29th day of January, 2014 as his evidence in support of the Plaintiff/Respondents case had stated in Paragraph 5 of his said Deposition thus:
5. That under the Monetization Policy of the Federal Government of Nigeria the Bungalow situate at CB34 Staff Quarters, Trans Egbu Owerri was sold to the late Mr. Ubah, a former Staff of the Bank.”

In Paragraphs 4, 6, 7, 8, 9 and 10 the witness had stated that the CB34 Staff Quarters was let to the Defendant by Messre Chinwuba Odumodu & Co. the erstwhile Agent of the Plaintiff and that the Defendant/Appellant took possession of the

Bungalow but only made an initial rent payment of N60,000.00 (Sixty Thousand Naira) only to the erstwhile Agent and did not pay rents thereafter. When the Respondent advertised for the sale of Staff Quarters, the Appellant indicated her interest to buy the subject matter of this Appeal which the Respondent refused her as the Quarters were meant for staff only.

When the Appellant was asked to vacate the premises she claimed to have renovated the property and demanded for the refund of the amount so expended before she would vacate the Bungalow, even when the Appellant was not authorized to renovate its Quarters. Upon refusal of the Appellant to quit the Quarters, the Respondent initiated this Suit now on appeal. The witness also stated that when the Respondent sold the property to Mr. Ubah its staff who later died, the deceased wife (herein the PW3) approached the Appellant to deliver up possession of the property to her but the Appellant refused insisting that she should be settled financially.

Subsequently, the Defendant reached an agreement to give the Plaintiff the sum of N300,000.00 (Three Hundred Thousand Naira) only to enable the

Defendant relocate and vacate the property. See Paragraphs 11 – 17 of the PW1s Statement on Oath.

In subsequent paragraphs of the Deposition thereof, the witness stated thus:
18. That on the 28th day of August, 2008, Mrs. E. Ubah gave the sum of N300, 000.00 (Three Hundred Thousand Naira) only to one Hon. Chibuzor Abanno, JP who is the son-in-law of the Defendant, on her behalf, being agreement reached for her to vacate the property; CB34 Trans Egbu, Owerri, on 28th day of September, 2008. See Annexed hereto a handwritten and signed acknowledgement receipt of the sum of N300,000.00 (Three Thousand Naira) only.
19. That I witnessed the collection of the money by Hon. Chibuzor Abanno, JP on behalf of the Defendant and also signed the acknowledgment receipt as a witness.
20. That the Defendant vacated the property before the 28th of September 2008 and that Mrs. Ubah took possession immediately.
24. That the matter was settled between the Defendant and Mrs. E. Ubah and the defendant consequently vacated the property upon the receipt of the sum of N300,000.00 (Three Hundred Thousand Naira)

only.”
See also the witness Deposition of the PW3 the said Mrs. E. Ubah at pages 74 and 75 of the records who also testified on the 19th day of March, 2014 and tendered the Acknowledgement Receipt for the Payment of the sum of N300,000.00 to the Respondent after adopting her said witnesses deposition as her evidence in support of the Respondents claim. It would be recalled that she had confirmed that after passionately pleading to no avail for the Appellant to vacate the house in question following the insistence of the Appellant that unless the Respondent paid her the cost of renovation of the property she would not vacate same, that she then reached an agreement with the Defendant to give her the sum of N300,000.00 (Three Hundred Thousand Naira Only) to enable her relocate from the property know as CB34 Trans Egbu Aladinma Owerri. (Paragraph 9).

In Paragraph 10 of said Deposition she further confirmed thus:
10. That on the 28th day of August, 2008, I paid the sum of N300,000.00 (Three Hundred Naira) only to Hon. Chibuzor Abanno, JP who is the Son in Law to Defendant. (See page 77 of the Records) for the

Acknowledgment Receipt for the said Refund.
11. That it was agreed between me and the Defendant that once the money is paid to her she would vacate the property on or before the 28th day of September, 2008.
12. That the Defendant actually vacated the property before 28th day of September, 2008.
13. That I took possession of the property CB34 Trans Egbu immediately as I was already stranded in my rented apartment.
15. That it was upon my payment of the sum of N300,00.00 (Three Hundred Thousand) only to the Defendant, that she moved out of the property.”

With the greatest respect to the learned Counsel for the Appellant, Madam E Ubah only negotiated with the Appellant in respect of her Appellants Counter-Claim for a refund of the expenses incurred in the renovation of the house now in dispute. The Claim of the Respondent which was for the sum of N1,560,000.00 (One Million, Five Hundred and Sixty Thousand Naira) only being arrears of rent from the year 1996 to the year 2007, is still intact as well as the sum of N3million as general damages for trespass. Accordingly even though we had

decided in Amuda V. Ajobo (1995) 7 NWLR (Pt.406) 170 at 182 Paras. E- F and the Supreme Court did decide before then in Oloriode V. Onyebi (1984) 1 SCNLR 390 at 406; that:
Once a party had disposed his interest in land he has no interest whatsoever in the land to protect or defend and he is therefore not the proper party to be sued in respect of a dispute as to the title to the land but the person to whom the land was devolved of course the former could be called as a witness in action.”

There is no doubt that Iroubar V. F. M. F. (2009) 15 NWLR (Pt.1165) page 506, Onwunalu V. Osademe (supra), Ekpere V. Aforije (supra) and Oloriode V. Onyebi that there must be proper parties in which case the Plaintiff/Respondent must be seiesed of the locus standi before the Lower Court could seised of the jurisdiction to entertain and determine its Claim/Suit.

However, in this case the Central Bank/Plaintiff in the Lower Court had the requisite Locus standi to sue for damages in respect of the trespass and illegal occupation of their CB34 Staff Quarters without rent from 1996 to 2007 prior to the sale and handing of possession over to the

late Ubah whose widow because of her predicament negotiated with the Appellant for settlement of the issue of expenditure incurred in the renovation of the house.

The Court below therefore ab initio was seised of the requisite jurisdiction to entertain the Plaintiffs Suit even on the basis of proper party or parties. Issues Numbers One 1 of the Appellant and Respondent is therefore resolved against the Appellant but in favour of the Respondent.

ISSUE NUMBER TWO OF THE APPELLANT: WHETHER THE DEFAULT JUDGMENT
OF THE COURT BELOW IS NOT NULLITY IN THE FACE OF THE FACT THAT THE PROCEEDINGS WERE CONDUCTED BEHIND THE APPELLANT OR COUNSEL WITHOUT SERVICE OF HEARING NOTICES ON EITHER THE APPELLANT OR COUNSEL?
AND
ISSUE NUMBER THREE: WHETHER THE LEARNED JUDGE MISDIRECTED HIMSELF IN ANY WAY AS TO THE STANDARD OF PROOF?.”

On this Issue, the learned Counsel for the Appellant submitted firstly that it is settled in our jurisprudence that where service of hearing notice is ordered by the Court, the Bailiff of the Court is under a duty to comply with the order. He referred to Pages 150 to 151 of the

Records where the Court below ordered that hearing notices to be served on the Defendant and her Counsel but that the Court below was deceived into believing that the aforementioned hearing notices ordered were served and thus proceeded to conduct the proceedings behind the Appellant or her Counsel and these led to a grave miscarriage of justice and a perverse decision against the Appellant.

We were then from the foregoing, urged to set aside the entirety of the proceedings conducted before Honourable O. O. Oguntoyinbo J. as same breached the Appellants right to fair hearing in the absence of Hearing Notices. Reliance was placed on Okoye V. Okoronkwo (2009) 6 NWLR (Pt. 1136) 130 at 150, Odutola V. Kayode (1994) 2 NWLR (Pt. 324) 1 at 19 Per Olatawura, JSC; were relied upon in arguing, that the exact situation as portrayed in the above cited cases played itself out in the Lower Court. He further referred to page 21 of the Report in the Odutola V. Kayode case per Mohammed, JSC, on the mode of effecting personal service of a Court process on a party and the further case of Alhaji Y. Dan Hausa & Co. v. Panatrade Ltd. (1993) 6 NWLR (Pt.298) 204 at 214

;on this point of law.

The learned Counsel alluded to pages 39, 47, 53 and 54 of the Records evidencing the address for service as furnished by the Appellant which was not confusing nor was any of the parties in doubt that all the Respondents processes were meant to be served on the Appellant at No. 10, Omoku Street, D/Line, Port Harcourt (Page 75 and 88 of the Records refer suit that the Bailiff of the Court never served any of the hearing notices at the said Address as alleged. What is more, the learned Counsel for the Appellant argued, that the last proceedings the Appellant participated was that of 25th October, 2011 and the suit was adjourned to 15th December 2012 on which date the Court did not sit (pages 142 143 of the Records refer) Referring further to pages 145 – 146 of the Records, he pointed out that at the proceedings of 28th February, 2013 Hearing Notice was ordered to be served on the Defendant but same was not served and that another hearing notice was ordered to be served on Defendant at the proceedings of 22nd May, 2012 which also was not served worse of all when the proceedings were conducted before Honourable

Justice F. A. Olubanjo who was transferred to Umuahia Judicial Division of the Federal High Court and Suit had to start denovo before Honourable Justice O. O. Oguntoyibo on 6th November, 2012 a period of five moths.

At the proceedings of the said 6th November, 2012 the Court below ordered another hearing notice on the parties and subsequently on the 28th of January, 2013 but same was not also served on the Defendant or her Counsel. Pages 151 of the Records was again referred to in submitting that it was on the strength that the Hearing Notices had been served that the Court below proceeded to hear the case behind the Appellant or Counsel and eventually entering a default Judgment against the Appellant.

Finally the Learned Counsel asserted that on the premise of the trite law on the effect of non-service of hearing notice on subsequent proceedings that we were urged on the authorities of Okoye V. OKoronkwo (2009) 6 NWLR (Pt.1136) 130 at 150 and Mark V. Eke (2004) 5 NWLR (Pt. 865) 54; to set aside the entire proceedings and the judgment delivered in breach of the right of the Appellant to fair hearing. We were further urged to order a retrial

de novo before another Judge of the Federal High Court assuming without his conceding that the Court below was seised of the jurisdiction to have entertained and determined the instant suit.

ARGUMENT OF LEARNED COUNSEL FOR THE RESPONDENT ON HIS ISSUE NUMBER 3 (THREE).
The Learned Counsel for the Respondent on this Issue cited and relied on Basheer V. Same (1992) 4 NWLR (Pt.236) 491 and INEC V. A. D. C. (2009) ALL FWLR (Pt.474) 1583 – 1587; on the position of the Law that unchallenged and undisputed facts are deemed admitted and therefore need no further proof and submitted that the Appellant and his learned Counsel abandoned their Counter-Claim and the Suit at the Lower Court after collecting the Sum of N300,000.00 (Three Hundred Thousand Naira) from the wife of Mr. Ubah (deceased) Mrs. E. Ubah and delivered up possession of CB 34 Trans Egbu Staff Quarters that was monetized to the late Staff.

The learned Counsel then posed the question as to how the Appellant suddenly became aware of the day Judgment was to be delivered in the Suit when she earlier claimed no knowledge of the pending Suit and submitted that since the Appellant did not

challenge the facts of the case as set out in the Statement of Claim and the evidence of the Plaintiffs witnesses, the Respondent proved his case and the Honourable Court did not misdirect itself in any way on the standard of proof.

Finally, it was contended by the learned Counsel for the Respondent that the learned Trial Judge looked at the Statement of claim and the Witnesses Depositions of the Respondent as well as the Statement of Defence and Counter-Claim of the Appellant who abandoned the Suit before delivering Judgment on 8th April, 2014 which Judgment we were urged to affirm.

RESOLUTION OF ISSUES NUMBERS TWO OF THE APPELLANT AND THREE OF RESPONDENT.
In the resolution of these Issues, I must unhesitatingly remark that the learned Counsel for the Respondent did not confront the contentions of the non- service of hearing notices on the Appellant nay her Counsel on the various days they were absent from Court as enumerated in his argument. Be that as it may, the Law appears well settled on a plethora of authorities that the issue of service of Court processes is an important and fundamental aspect of the judicial process and as held

in the recent case of Ihedioha V. Okorocha (2016) 1 N. W. L . R (Pt.1492) 147 at 179 Paras. D- F Per Okoro, JSC who re-emphasized this point thus:
I must emphasize that service of process is an important aspect of the judicial process. Failure to serve a named party with Court process offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). As was rightly pointed out by the learned Counsel for the 11th Respondent, Chief Falade, the failure to serve those Respondents constitutes a breach of the rule of fair hearing and robs the Court of Jurisdiction to hear the Appeal. Any breach of this principle renders the proceedings a nullity. See Chime V. Onyia (2009) ALL FWLR (Pt.480) 673 at 730 – 731 Paras. H – B. (2009) 2 NWLR (Pt.1124) 1. Service of process, I must say is a fundamental Issue and a condition precedent before the Court can have competence to adjudicate. See, Eke V. Ogbonna (2007) ALL FWLR (Pt.351) 1456 at 1485 Para. H; (2006) 18 NWLR (Pt.1012) 506.”
The above Statement of the Law relates to want of service of the originating process (the Notice of Appeal in that case) but

just as it is fundamental to serve the rival party with the originating process so as to apprise him of the case to meet in order to prepare for his defence, so it is in respect of hearing notices. Thus as important and fundamental as the service of Originating processes are, so are hearing notices which are meant to intimate parties of the hearing date and the want of service would also strip the Court of the jurisdiction to entertain and determine the case since the party not served has also been deprived of his right to fair hearing as encapsulated in the maxin audi alteraum parten and as entrenched in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
In this wise the Courts have held that when a matter comes up before a trial Court as in our instant case, it is duty bound to fully satisfy itself, that all parties to the case have been served with the Court process at one stage and that they are aware of the hearing or trial date. See, Agena V. Katseen (1998) 3 NWLR (Pt.543) 560, Mbadinuju V. Ezuka (1994) 10 SCNJ 109 ; where it was held variously that the failure to notify the parties of the date of hearing of the

matter renders the proceedings null and void for want of Jurisdiction of the Court to entertain same.
To avoid such pit falls in the administration of Justice, the Supreme Court had admonished Courts to be aware of the difference between the date a case is fixed for hearing as provided for under Order 19 of the Federal High Court (Civil Procedure) Rules, 2009 and adjourned dates. See Okorodudu V. Okoromadu (1977) 3 S. C. 21; where the Supreme Court reasoned thus: It appears from the foregoing provisions (in that case Order 26 Rule 1(3) of then Bendel State High Court (Civil Procedure Rules) that the date fixed for hearing a case is the date the case is fixed for hearing on the cause list after the close of pleadings and subsequent date for hearing is an adjourned date.
The authorities are also settled that when a case is set down for hearing on dates fixed in open Court in the presence of parties and their Counsel, there is no duty on the Court to order hearing notices nor is there a duty on the Registry to issue hearing notices to parties and their Counsel but what is required is for the Registrar to place the matter on the cause

list for the dates so previously fixed in open Court. Where a case was adjourned for defence at the instance of the Appellant in the case of Adeyemi V. Lan & Baker (2000) 7 NWLR (Pt. 663) 33; it was held that the Judge acted within his duties when he proceeded to hearing the case on the last of the two days to which the matter was adjourned and in such circumstance the Appellant could not complain of lack of fair hearing.
In the very recent locus classicus of Okon V. Adigwe [2011] 15 NWLR (Pt.1270) 350 at 360 to 376, Nwodo, JCA; of blessed memory had cause to lay bare the principles underlying the service or non service of hearing notice in the adjuratory process and the consequence of non-compliance of the Rules in this respect. We shall seek solace in that authority as the facts of this case demand.

Now, the learned Counsel for the Appellant in this case has catalogued the number of days the case now on appeal was adjourned and the Court ordered for the issuance of hearing notices which the Bailiffs failed to serve but deceived the Lower Court into believing that the Appellant whose address was clearly stated in her processes, had been duly

served thereby misleading the trial Court into hearing and determining the case behind the Appellant. References have been made to particular pages of the Record of Appeal.

I have carefully perused the Record of proceedings and discovered that the case came up first before the Honourable Justice B. G. Ashigar on the 10th day of December, 2009 and same was adjourned in absence of the parties but in the presence of Chief G. O. Aigbonian for the Plaintiff who asked for a date to file their Deposition and written Address in compliance with the new Rules. the matter was adjourned at his instance to 10/2/2010.

On that 10/2/2010 before the same Hon. Justice B. G. Ashigar, the matter was for hearing but parties again were not present-only Chief G. O. Aigbonian for the Plaintiff was present. The Court remarked that the Defendant was not in Court despite the fact that they were served with Hearing Notice as intimated it by the learned Counsel for the Plaintiff also asked for a further adjournment to 19/4/2010 which the Court obliged him. (See pages 127 and 128 of the Records).

On the 19th day of April, 2010 the Plaintiff was present but learned Counsel

sought again for a date to enable him comply with the new Federal High Court Rules. The case was then adjourned to 24/5/2010 for mention since it would appear that it came before the Hon. Justice F. A. Olubanjo for the first time. On that 24th May, 2010 before the Hon. Justice Olubanjo, parties were absent but Aigbomian Esq appeared for the Plaintiff while Isah Seidu Esq. appeared for the Defendant/Applicant and moved a motion for change of Counsel for the Defendant. The Court granted the Application for him the said Seidu Esq to hence forth appear for the Defendant.

That same day Isah Seidu asked for time to retrieve the case file from former Counsel and to file witnesses Depositions as well as obtain copies of the processes of Court. He further informed the Court that parties had settled. Aigbomian Esq denied being informed of such settlement. The case was subsequently adjourned to 22/6/10 for hearing. The Court did not sit on the next adjoined date (the 22nd June, 2010) because of NJI Induction course (see Pages 131 -132 of the Records).

The Court resumed sitting before Olubanjo, J. on 13/7/2010 on which date the case was again adjourned to

12/10/2010 for hearing in the absence of parties but the respective learned Counsel were present in Court. At page 134 of the Records before the selfsame Olubanjo, J; on the 12th October, 2010, it was recorded that the Defendant came back from abroad only two weeks ago but that Seidu Esq, had filed all there require processes. The motion for extension of time to file the Defence and Counter-Claim of the Defendant was moved by the and same was granted and the case adjourned to 1/12/2010 for definite hearing. On that 1/12/2010 before Hon. Justice Olubanjo parties were absent but their respective Counsel were in Court. Aigbonian Esq who was yet to file the Plaintiffs Reply to the Counter-claim intimated the Court that he learnt from the Defendant that she had written the Plaintiff at the Branch Office and Head Office. Upon that basis the Court adjourned to 2/3/2011 for Report of Settlement or definite hearing (see pages 13 – 136 of the Records.

Still before Olubanjo, J. the case was adjourned to the 5th of April, 2011 after Plaintiffs Counsel informing the Court that the parties had not settled. Aigbomian Esq was ordered to communicate

the date of adjournment to the parties and the case was again adjourned for Report of settlement or definite hearing. On that 5th day of April, 2011, Mr. Seidu informed the Court that settlement had failed and that he wanted the case to proceed to definite hearing. On that the Further Affidavit filed in Reply to the Defendants Counter-Claim and the written Address in support were struck out and the case was further adjourned to 3/5/11 for definite hearing still before Justice Olubanjo. On the 31st May, 2011, the case could not go on as the respective learned Counsel intimated the Court that the parties had decided to attempt settlement again. The case was again adjourned to 20/07/2011 for Report of settlement or definite hearing.

At page 141 of the Records on the 20th day of July, 2011 before Olubanjo, J. Defendant and Counsel were absent and Aigbonian Esq who appeared for the Plaintiff informed the Court that his witness was in Court but the Defendant had no legal representation. On that basis the Court adjourned the case to 25/10/2011 for definite hearing and ordered that Hearing Notice to issue on Defendant. At page 142 before

Olubanjo, J. wanted to call a witness out of his three witnesses but the hearing was stalled as Seidu, Esq said he had only one witness Deposition served on him and Aigbomian Esq still sought for time to file the witness Depositions of other witnesses. The case was adjourned to 15/12/2011 No Court sitting took place on 15th/12/2011 and it was not until the 28th day of December, 2012 that the Court per Olubanjo, J; sat.

On that the day neither the Defendant nor his Counsel appeared and when U.C. Iworie, Esq who appeared for the Appellant was to call his witness the Court ruled that the case had earlier been adjourned off record on 15/12/11 and because of that he would adjourn further to 29/3/2012 for hearing. The Court also ordered that Hearing Notice should issue on the absent Defendant. (See pages 145 – 146 of the Records).

Come 29th March, 2012 the Court did not sit. The Court Coram: Olubanjo, J. resumed sitting without the appearance of the Defendant and her Counsel. The PW1 along with Aigbomain Esq who was led by G . C. Okorie Esq for the Plaintiff and the Court was again minded to adjourn to 19/7/12 with order for Hearing Notice to be served on

the Defendant. (See page 148 of the Records).

On the 19th July, 2012 vacation had commenced and on resumption on the 6th day of November, 2012 before a new Judge, Hon Justice O. O. Oguntoyinbo parties were absent and the case was again adjourned to 28th January, 2013 for mention. Hearing Notice were ordered to be issued on the parties and their respective Counsel. On that 28th January, 2013 parties were absent and while Aigbomian appeared for the Plaintiff, there was no legal representation for the Defendant. The Court again on the application of the Learned Counsel for the Plaintiff adjourned the case to 19th March, 2013 for hearing. Again, hearing Notice was ordered to be issued to Defendant and her Counsel. (See pages 150 and 151 of the Records).

At page 152 of the Records, His Lordship Ogantoyinbo J; at the proceedings of 19th March, 2013 was minded to remark that: Neither the Defendant nor her Counsel has appeared before this Honourable Court in the last 4 adjournments which were on:
(1)28/2/2012, (2) 22nd May, 2012, (3) 5th November, 2012 (4) 28th January, 2013.
The Court can no longer wait for the Defendant. The

Plaintiff/Applicants Counsel since he has been ready to go on with this matter all this time will adopt his processes.
Aigbomain wants to bring a motion for Judgment. In that regard the matter is hereby adjourned to the 16th of April, 2013 for adoption. See pages 152 – 153 of the Records.

On that 16th of April, 2013 Plaintiff and its learned Counsel were in Court while the Defendant as usual was absent. The motion which Aigbomian Esq would have moved was adjourned for hearing to 14/5/2013 since it would appear that the Defendant had not been served.

Just like the proceedings of 19/3/2013, it does not appear that the Court ordered for the issuance of hearing Notice on the absent Defendant and her learned Counsel. Be that as it may, the Court did not sit on the 14th day of May, 2013 and 8th day of July, 2013, on which dates the case was adjourned to and it was not until the 28th day of October, 2013. Arising from the persistence of the Appellant and her learned Counsels absence the Court below exasperatedly recorded on the 25th day of October, 2013 when hearing resumed at page 157 of the Records.
Defendant

Counsel not here as usual. There is evidence of several hearing notices being served on the Defendant.”

After this remark, the Plaintiffs learned Counsel was allowed to move his motion for Judgment which was granted allowing the Plaintiff to prove his case on the 21st day of November, 2013 to which date the case was again adjourned. There is also no indication whether hearing Notice was ordered to be served on the Defendant and his Counsel to appear for trial on that said 21st November, 2013.

Then came the 21st day of November, 2013, 29th day of January, 2014 and 19th day of March, 2014 to which the case was adjourned for the witnesses for the Plaintiff to testify in the absence of the. Defendant and her Counsel.

On the 19th of March, 2014 at the close of the Plaintiffs case the Judgment of the Trial Court was reserved for Tuesday the 8th day of April, 2014 and there was still no indication on Records that the Appellant was given Hearing Notice. In any case at page 164 of the Records, the Court had ordered that: The defence is hereby foreclosed from cross-examining the Plaintiffs witnesses”.

Curiously, on the

8th day of April, 2014 when Judgment was to be delivered the Defendant appeared after absenting herself from Court since, 2011.

I am not oblivious of the authorities cited by the learned Counsel for the Appellant like Okoye V. Okoronkwo (supra), Odutola V. Kayode (supra) Per Olatawara, and Mohammed JSC on the effect of non service of Hearing Notice on the Appellant and his Counsel inspite of the orders for that purpose as made by the trial Judge.

on the other hand, the learned Counsel for the Appellant has not explained away why the Appellant on whose behalf learned Counsel has argued was not served with hearing notice since the last time being the 25th October, 2011 they participated in the proceedings of the lower yet on the date of Judgment, the Appellant suddenly appeared.

Notwithstanding the above scenario I have searched through the Records and cannot see where the Bailiff swore to any Affidavits of service that the Appellants was served with the Hearing Notices as ordered on the various days the Appellant and her Counsel were absent from Court. the Court fell into the same error by failing to verify and record proof of service on the

Appellant and her Counsel on the various dates of the proceedings following his said orders for issuance of Hearing Notice except for the proceedings of 25th day of October, 2013 at page 157 of the Records in exasperation ordered the Respondents Counsel to proceed to move his motion for Judgment.

In Okon V. Adigwe (supra) at page 374 Paras C – H and 375 Paras A – G, Nwodo, JCA had alluded to the argument of the learned Counsel to the Respondent as done herein by the learned Counsel by the learned Counsel for the Appellant that the Appellant and her Counsel abandoned their Counter-Claim as well as the Suit in which case the learned Counsel for the Respondent insinuatied that a party who is not served with hearing notice, nothing stopped such a party from visiting the Registry to enquire about the prosition of the case. He conceded that this is a reasonable argument but that is not the law founded on fair hearing which requires that equal opportunity be given to all parties and this requirement is not breached when the party was afforded the opportunity but decided to fluff or squander the opportunity by deliberately refusing to defend

himself or proof his/her case through tardiness as the law as well as equity do not aid the indolent.
In the words of the learned Law Lord of blessed memory which I adopt completely as mine as applicable to the facts and circumstances of this case;
What is paramount is that the party who decides to be a recalcitrant defaulting party should be served with hearing notice at every stage of the proceedings that he is absent from Court and proof of service rewarded before Court proceeds with the case. This is to avert the situation (as in this case) the Defendant who decides to delay/frustrate proceedings deliberately by not appearing in Court after entering appearance will rise the issue that he was not heard. Once there is evidence of service, the absence of the party served will be regarded as amounting to a waiver of his right or indolence which cannot amount to denial fair hearing.”
There is no doubt that the Appellant who had entered her appearance and filed her Defence and Counter-Claim only to abandon the case on all subsequent adjourned dates from 2011 until the day of Judgment only to resurface, would have exasperated the Judge

to make the orders calling on the Respondent to prove its case and foreclosing the Appellant from cross- examining the witnesses for the Respondent and subsequently hearing the witnesses and delivering Judgment. The learned trial Judge ought to be guided by the admonition of Nnaemeka- Agu, J.S.C In Dawodu V. Ologundudu (1986) 4 NWLR (Pt.33) 104 at 115 – 116 Paras. F – A; that in the trial Judge showing his disapproval of the inordinate and constant adjournments and absence of the Appellants from Court, he should have done well to remember that certain features of our adversary system of administration of Justice carry with them some implications of inevitable delay. Thus, the audi alteraim partem rule which together with the rule nemo judex in Caussa sua are the twin pillars of fair hearing, carry with them the need to give to all the parties due notice of hearing and the opportunity to be heard and to cross- examine every witness called by ones adversaries. This according to His Lordship (now of blessed memory) is because generally, a breach of the rule, save in a few statutory exceptions, will invalidate the proceedings because it is a

breach of not only the right to fair hearing as entrenched in our Constitution but also a breach of the rule of Natural Justice.

It is against this background and on the authorities cited by the learned Counsel for the Appellant that I hold that notwithstanding the fact that the Appellant may have deliberately abandoned her case and the Plaintiff/Respondents suit on the ostensible reason that the widow of the Late Mr. Ubah had settled her with N300,000.00 (Three Hundred Thousand Naira), since the Hearing Notice were not served on her or her Counsel as ordered by the Court, below, her right to fair hearing was violated and in consequence, the Court below had no jurisdiction to entertain the witnesses for the Plaintiff behind the Appellants back and delivered Judgment even the Appellant eventually, re-surfaced. Since Appellant was not give the opportunity to be heard a condition precedent for the adjudication of the Plaintiffs Suit had not been fulfilled.

Accordingly, no matter how right the Judgment of the learned Trial Court may be it is null and void and of no effect whatsoever. The Appellant even upon an application to the

Court below was entitled to have the judgment entered in default of his appearance set aside Ex-Debito Justitiae. see Madukolu V. Nkemdilim (1962) 1 ALL N. L. R. 587; A . G. Rivers State V. Ude (2006) 17 NWLR (Pt.1008) 436 S.C, Tsokwa motors (Nig.) Ltd V. UBA Plc (2008) 2 NWLR (Pt.1071) 347 S.C; Okoye V. C.P. M B. Ltd. (2008) 15 NWLR (Pt.1110) 335 S.C and Victno Fixed Odds ltd. V. Ojo (2010) 8 NWLR (Pt.1197) 486 S.C .

Having come here by way of Appeal, this Court is duty bound to do the needful by setting aside the Judgment of the Lower Court aside for being in breach of the Appellants right of fair hearing. on the whole this Issue is resolved in favour of the Appellant.

With the resolution of this Issue in favour of the Appellant, Issue Number 3 of the Appellant and Issue Number 2 of the Respondent on WHETHER THE RESPONDENT AT THE COURT BELOW PROVED ITS CASE TO ENTITLED IT TO JUDGMENT” becomes merely an exercise in futility.

However, for whatever it is worth the learned Counsel for the Appellant has right argued citing Nwogbo V. Njoku (1990) 3 NWLR (Pt.140) page 570 at 572 that a party may still lose his case or her case even the

other party did not appear to participate in the proceeding. This is more so as the Plaintiff/Respondent sought for a Declaratory Relief in which even upon the admission of the Appellant the Onus was still on him to establish by cogent and convincing evidence that he was entitled to the Declaration sought.

In so doing the Plaintiff was expected to rely on the strength of its case and not on the weakness of the Defendants see Nruamah & Ors. V. Ebuzoeme & Ors. (2013) 221 LRCN (Pt.1) 221 at page 242 PZ; Emenike V. PDP & Ors (2012) LPELR- 7802 (S.C.) A . G. Rivers State V. A . G. Bayelsa State & Anor (2012) LPELR 9336 (S.C.); Dumez Nig. ltd. V. Nwakhoba (2008) LPELR 965 (SC) AND Shittu & Ors. V. Olawumi & Ors. (2011) LPELR- 885 2 (CA).

There is also no doubt as the learned Counsel for the Appellant had argued that facts admitted need no further proof and that on the authority of Ogbonna V. Ogbuji (2014) 6 NWLR (Pt.1403) 205 at 235 Para. C – F that admission by pleading is the strongest form of admission.

As I had earlier reasoned the Plaintiff/Respondents pleadings were a

classical case of equivocation for that while in one breadth it was claimed that the Defendant was not their tenant, in another breath they claimed that he was put in as a tenant at the instance of her (Respondents) erstwhile Estate Agent Chinwuba Odumodu & Co. (See Paragraph 9 of the Statement of claim at page 3 of the Records). Again while the Bank Claimed that the Defendant did not pay rent in one breadth in another the Plaintiff in Paragraph 11 of the Statement of Claim averred that the Defendant through the fraudulent nature of Defendant and Plaintiffs Erstwhile, the Defendant paid N30,000.00 as an annual rent for a Bungalow which as at 1996 would have attracted the sum of N100,000.00 or more. Yet PW2 Mr. Peter Osuji a Principal Manager of the Plaintiff/Respondent averred in Paragraph 6 of his witness Deposition/Evidence inter alia.
6. That I am aware that when the Defendant took possession of the Bungalow she only made an initial payment of N60,000.00 (Sixty Thousand Naira Only) to the erstwhile Agent and did not pay rents after words.”

However, the contention of the Plaintiff is that the contract between the

Defendant and the Plaintiffs Agent expired and was determined in 1999 and that since 1997 to year 2008 the Appellant did not pay rent in respect of the property in question. Meanwhile from the Relief claimed at page 5 of the Records, the Plaintiff/Respondent sought for N1,560, 000.00 being arrear of rent from 1996 – 2007 in which case the Plaintiff was not consistent with the arrears of rent sought.

The above notwithstanding, the Defendants who joined issue with the Plaintiff by filing their Statement of Defence and Counter-Claim together with their witnesses Deposition and list of document abandoned their case and did not turn up until Judgment was delivered in default.

Ordinarily, the Defendant (assuming she was duly served with Hearing Notice but she refused to attend Court) did not challenge the evidence of the Plaintiffs witnesses and on the authorities of Yesufu V. Adama (2010) 3 NWLR (Pt.1) page 104 at 115 and Ajero V. UGORJI (1999) 71 LRCN 28 75 at 2904, which were relied by the learned trial Judge, was deemed to have accepted the case of the Plaintiff unchallenged. See further Agagu V. Mimiko & Ors. (2009) LPELR

21149 (CA) at pages 53 – 54 where Per Abdullahi, PCA; reasoned on the effect of a Defendants option not to call or proffer evidence in support of his Statement of Defence, that:
It must be borne in mind that there are instances in which a Defendant who did not call any evidence may still be entitled to Judgment. Such instances include where the Plaintiff or Petitioner failed to call evidence on material facts in support of his case or where the evidence by the Plaintiff or Petitioner is so manifestly discredited that no reasonable Tribunal can accept and act on it. see Aduke V. Aiyelabola 8 WACA 43 at 45; Ogomaja V. Commission for Education & Ors. (1995) 8 NWLR (Pt.411) 69, Onyekaonwu V. Ekwubiri (1966) 1 ALL NLR 32. A Defendant may also be entitled to Judgment without adducing oral evidence, if through cross examination of the Plaintiff and his witness and tendering of documents through them destroys the Plaintiffs case and established a valid defence see Lawal V. UBN Plc & Ors. (1995) 2 NWLR (Pt.378) 407. in civil case, the only way to arrive at a final decision is by determine on which side the

weight of evidence tilts. If a Defendant Opts or chooses not to call or proffer any evidence the issue calling for determination will be proved on minimal evidence. see Nwabuoku V. Ottih (1961) A. N. L. R. 507 and Attorney-General Oyo State V. Fair Lakes Hotels Ltd. No 2. (1989) 5 NWLR (Pt.121) 255.”

The above cited dictum of the Erstwhile President of this Court dealt with a case where witnesses Deposition were not filed but in our instant case mere filing of witnesses Depositions without adoption did not translate them to evidence and the learned trial Judge had nothing to put on the other side of the imaginary scale of justice when he gave Judgment in favour of the Respondent based only on the unchallenged evidence of the Respondents Witnesses.

The Judgment of the trial Court ought to have stood in view of the fact that the Appellant led no evidence to challenge the evidence of the Plaintiff/Respondent. Having however decided earlier that the Court below in the first place lacked the Jurisdiction to hear the case of the Plaintiff behind the Defendant/Appellant, this Issue is resolved in favour of the Appellant.

On the whole this

Appeal is meritorious on ground of want of by the Lower Court Jurisdiction and same is allowed. I hereby order that the suit be remitted to the Federal High Court Owerri to be heard de novo by another Judge. I make no order as to costs.

Other Citations: (2016)LCN/8648(CA)

Mrs. Louisa A. Agu V. Central Bank of Nigeria (2016) LLJR-CA

Mrs. Louisa A. Agu V. Central Bank of Nigeria (2016)

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