NIGERIA TELECOMMUNICATIONS LTD v. MRS. BIBIANA SANI (2011)

NIGERIA TELECOMMUNICATIONS LTD v. MRS. BIBIANA SANI

(2011)LCN/4290(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of February, 2011

CA/A/102/2004

RATIO

WHETHER THE APPLICABLE LAW IN DETERMINING A CAUSE OF ACTION IS THE LAW IN FORCE AT THE TIME THE CAUSE OF ACTION AROSE; WHAT IS THE APPLICABLE LAW IN DETERMINING THE JURISDICTION OF A COURT TO ENTERTAIN A SUIT

By that date and time the provisions of Decree 107 of 1993 were in application and therefore defined and regulated the jurisdiction of the State and that of the FCT High Court to hear and determine the civil rights and obligations in cases that come before them. In the case of AGBAJO v. ATTORNEY-GENERAL OF THE FEDERATION. (1968) 2 NWLR (23) 528, it was held that:- “It is the law which is in force at the time the cause of action arose that must be applied and not the law in force at the time the suit was filed” However in the case of the law relating to the jurisdiction of a court to entertain a suit, the law applicable is that in force at the time the suit was instituted or commenced. See also: ATTORNEY GENERAL OF LAGOS STATE v. DOSUNMU (1989) 3 NWLR (III) 552. DIN v. ATTORNEY GENERAL OF FEDERATION (1988) 4 NWLR (87) 147. See also: UWAIFO v. A.G. BENDEL STATE (1982).7 SC. 124. UTIH v. ONOYIVWE (supra) at 207. PER MOHAMMED LAWAL GARBA, J.C.A.

JURISDICTION: THE PRINCIPLES GUIDING THE COURT IN DETERMINING WHETHER OR NOT IT HAS THE REQUISITE JURISDICTION AND COMPETENCE TO HEAR AND DETERMINE A MATTER BEFORE IT

INTERPRETATION OF STATUTE: INTERPRETATION OF THE SECTION 257(1) OF THE CONSTITUTION AS TO THE WHETHER THE FEDERAL HIGH COURT HAS THE JURISDICTION TO ENTERTAIN OR THE COMPETENCE TO ADJUDICATE OVER A CLAIM CHALLENGING THE VALIDITY OF AN EXECUTIVE OR ADMINISTRATIVE ACTION OR DECISION OF AN AGENCY OF THE FEDERAL GOVERNMENT TO TERMINATE AN APPOINTMENT

“257.-(1) Subject to the provisions of section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.” It is clear as crystal that the jurisdiction conferred on the FCT High Court by or in the above provisions has been subjected and made subordinate to the earlier provisions of Section 251 of the same constitution which confers the Federal High court with exclusive jurisdiction in cases listed and set out therein. The Supreme court in the case of FEDERAL REPUBLIC OF NIGERIA v. OSAHON 2006 ALL FWL (312) 1975 at 2030 had stated the import of the use of the words “subject to” in Statutes when it said:- “The expression ‘subject to’ when used in a statute means liable, subordinate, subservient, or inferior to, governed or affected by; provided that or provided; answerable for. The term introduces a condition, a restriction, a limitation, a provision. It subordinates the provisions of the subject section to the section empowered by reference thereto und which is intended not to be diminished by the subject section. The expression generally implies that what is ,subject to, shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provisions to which it is subject conditional upon compliance with or adherence to what is prescribed in the provision referred.” See also: TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (117) LABIYI V. ANRETIOLA (1992) 8 NWLR (285) 139, NDIC V. OKEM ENT. LTD. (2004) ALL FWLR (210) 1176. In the above context, the jurisdiction conferred on the FCT High Court under Section 257(1) has been restricted, limited and curtailed by being subjected and made subordinate to the exclusive jurisdiction vested in the Federal High Court under Section 251. In ordinary language, the jurisdiction of the FCT High Court is inferior to that of the Federal High Court in the cases listed in Section 251 such that the FCT High Court’s jurisdiction in those cases was completely taken away from it and exclusively vested in the Federal High Court. In all the causes or matters set out in Section 251(1), the FCT High Court would consequently have no jurisdiction on the subject matters therein and the instance (b) set out in the MADUKOLU v. NKEMDILIM case would not be fulfilled to enable it have the requisite jurisdiction and competence to adjudicate. The question that agitates itself now is whether the act or action of the Appellant terminating the appointment of the Respondent was an executive or administrative decision or action the validity of which was affected by the reliefs sought by the Respondent in the case before the FCT High court so as to bring it within the purview of the provision of Section 251(1)(s) of the constitution. Put in brief, are the provisions of Section 251(1)(s) applicable to the Respondent’s action as to deprive the FCT High Court of jurisdiction to entertain it? From the letter received by the Respondent terminating her appointment which was admitted in evidence at the trial before the FCT High court and marked as Exhibit F, the act of the termination was an executive as well as an administrative decision and action by the management of the Appellant. By the averments in paragraphs 18, 21 and claim in 24(a) of the Respondent’s statement of claim and Respondent’s evidence at page 36 of the record of appeal, the Respondent is clearly challenging the validity of such decision or action by saying that it was wrongful. The Appellant being an agency of the Federal Government as stated before now, the claims by the Respondent before the FCT High Court undoubtedly were caught up and fall within the purview of the provisions of Section 251(1)(r) of the 1999 constitution which vest exclusive jurisdiction over them on the Federal High Court, thereby depriving the FCT High Court of the requisite jurisdiction and competence to adjudicate over the claims. I am in no doubt that with the provisions of that Section, the FCT High court lacked and still lacks the competence to adjudicate on the claims by the Respondent which seek inter alia for declaration affecting the validity of the executive and administrative decision by the Appellant, agency of the Federal Government, of terminating her appointment. I find support for this position in the decision of this court in the case of F.M.C.T. v. EZE (2006) ALL FWLR (323) 1704 at 1721 where it was held thus:- “By Section 251(1)(r), the Federal High Court also has exclusive jurisdiction subject to the provisions of the Constitution, in cases involving the Federal Government or any of its agencies or in proceedings for declaration or injunction affecting the validity of any executive action or decision by the Federal Government or any of its agencies.” [See also: NEPA v. ADEGBENRO (2002) FWLR (139) 1556; (2002) 12 SCNJ. 173. ODUTOLA v. UNILORIN (supra). DIRECTOR. S.S.S. v. OJUKWU (2006) ALL FWLR (339) 979 at 987-8. ESSI v. NPA (2006) ALL FWLR (311) 1909 at 1921. The position is further strengthened by the Supreme Court in the case of OLORUNTOBA-OJU V. ABDUL-RAHIM (2009) 13 NWLR (1157) 83 at 126-7 where after setting out the provisions of Section 251(1)(p),(q) and (r) of the 1999 Constitution it said:- “A community reading of these provisions shows that the Federal High Court is vested with the power to enter into adjudication of any action or proceedings seeking declaratory or injunctive reliefs.” For the above reasons, I do not hesitate in answering and resolving the Appellant’s issue one in the negative, in favour of the Appellant. The FCT High court lacked as at 2001 and still lacks the requisite jurisdiction and competence to adjudicate on the Respondent’s claims for declaration which challenged the executive action or decision by the Appellant, to terminate her appointment.” PER MOHAMMED LAWAL GARBA, J.C.A.

DUTY OF COURT: DUTY OF THE COURT OF APPEAL TO DECIDE ON ALL OF THE ISSUES THAT HAVE BEEN PLACED BEFORE IT BY THE PARTIES

I am not unmindful of the exhortation on this Court by the apex Court of the land that the Court is to decide all issues that have been placed before it by the parties being an intermediate court in the hierarchy of courts in the country. I however rely on the exception provided for the court by the apex Court in the case of FED. MINISTRY OF HEALTH v. C.S.A. LTD (2009) 9 NWLR (1145) 193 at 220-1 where the above requirement was restated. The Supreme Court had said:- “Except in the Supreme Court, all issues ought and must be considered and dealt with by the intermediate court, except or unless in the clearest of cases, the Court of Appeal should endeavour to resolve or pronounce on all issues put before it.” I have indicated elsewhere in this judgment that I have no doubt that on the present state of the law, the principles of which were stated and restated in the cases cited on the issue, that the FCT High court lacks jurisdiction to adjudicate on the Respondent’s claim pursuant to the provisions of section 251(1)(r) of the 1999 constitution. This appeal is therefore one “in the clearest of cases” made an exception to the duty to resolve and make pronouncement on all the issues put before this court. But having even commented on the two (2) other issues in the appeals and holding that they have been overtaken by the resolution of issue 1, I have considered and made pronouncement of the said issues. The duty therefore to consider the other issues in detail has abated since they have been rendered merely academic for the purpose of the appeal. See: COOKEY v. FOMBO (2005) 5 SC (II) 102 at 111. UZUDA v. EBIGAH (2009) 15 NWLR (1163) 1 at 22; another Supreme Court decision. PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

Between

NIGERIA TELECOMMUNICATIONS LTD Appellant(s)

AND

MRS. BIBIANA SANI Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decisions of the FCT High court in Suit No.FCT/HC/CV/848/01 contained in the ruling and judgment both delivered on the 19/3/03. In the ruling, the Appellant’s application for extension of time to file its statement of defence to the claims against it by the Respondent was refused and the judgment was entered in favour of the Respondent.
Being dissatisfied with the decisions, the Appellant filed a notice of appeal against them. For their brevity, I can afford to set out the grounds of appeal without their particulars and they are as follows:
“1. GROUND ONE
The learned trial Judge erred in law in entertaining the Plaintiffs claim against the Defendant when it was apparent that he lacked jurisdiction to adjudicate on the claims against the Defendant before him, which error has occasioned a miscarriage of justice.
2. GROUND 2
The judgment of the learned trial judge is against the weight of evidence.
3. GROUND 3
The judgment of the court is in want of fair hearing.”
From these grounds, the learned counsel who settled the Appellant’s brief of argument filed on the 2/7/04 in line with the Rules of the court, raised three (3) issues which he said arise for determination in the appeal. They are thus:-
“1. Whether by the provision of S.230(1)(s) of the 1979 Constitution (as amended by Decree 107 of 1993) now S.251(1)(R) of the 1999 Constitution of the Federal Republic of Nigeria, the trial Court has jurisdiction to hear the case (relates to ground 1).
2. Whether the trial court exercised its discretion judiciously and judicially in refusing the application of the Appellant for extension of time (ground 3).
3. Whether from the evidence before the trial court, the Respondent is entitled to judgment as contained in the statement of claim.”
There is no record that the Respondent though served with all the processes of the appeal including the Appellant’s brief of argument, had filed a brief of argument in the appeal. Consequent upon the failure by the Respondent to file a brief of argument within the period of time prescribed by the Rules of court, the court granted an application by the Appellant for the appeal to be heard on the Appellants brief of argument alone on the 8/6/10. On the 17/1/11 when the appeal was called up in Court for oral hearing, the Respondent was absent and not represented by Counsel who the record of service by the Bailiff of the Court, showed was duly served with the hearing notice of the appeal on the 10/1/11. There was no communication from the learned Counsel for the Respondent; G. N. Bako Esq. to the Court to excuse the absence from Court on that day and there was no record of any step taken by him to show that he intended to file a brief of argument for the Respondent in the appeal. Mr. Samuel Zibiri, Esq. leading Paul Golu, Esq., learned Counsel for the Appellant then adopted the Appellant’s brief of argument as the submissions in support of the appeal and urged us to allow it, set aside the decisions of the FCT High Court and strike out the suit of the Respondent for want of jurisdiction.
From the above account of the absence of a brief of argument from the Respondent to respond to or answer the submissions contained in the Appellant’s brief of argument in support of the appeal, the appeal is uncontested and unchallenged. The legal effect or consequence of failure by a party to a dispute or a Respondent in an appeal to react to the issues in dispute or file a Respondent’s brief in an appeal is that such a party or Respondent is deemed to have conceded and admitted the issues or the appeal. See:
UGBOAJA v. SOWEMIMO (2008) 10 MJSC. 105;
FBN v AKINYOSOYE (2005) 5 NWLR (918) 340,
ERAVWODOKE V. U.B.T.H.M.B. (1993) 2 NWLR (227) 590. However  in an uncontested appeal such as the present one where the Respondent did not file a brief of argument and so deemed to have in law conceded or even admitted the issues canvassed by the Appellant, the latter is not automatically to succeed on such concession or and admission. The Appellant is to succeed on the strength of his own case not on the failure or option, by the Respondent not to challenge the appeal and the Court is still under a duty to consider whether the appeal is sustainable in law. This is the position of the law stated by the court in the case of JOHN HOLT VENTURES LTD V OPUTA(1996) 9 NWLR (470) 101 at 112 when it held that:-
“Where a respondent to an appeal fails to file a respondent brief as in the instant case, the appellant is not by virtue of there being no respondent brief automatically entitled to judgment in the case. The appellant can only succeed on the strength of his own case and not on the weakness of the case of the respondent or on the ground that there was no respondent brief.”
See also: SALAU v. FARA-KOYI (2001) 13 NWLR (751) 602,
EBE v. EBE (2004) 3 NWLR (860) 215,
ECHERE v. EZIRIKE (2006) ALL FWLR (323) 1579 at 1608.
In the above premises, I would consider the issues raised by the Appellant in the Appellant’s brief and then decide if the submissions canvassed are sustainable in law.
The first issue is whether by the provisions of Section 230(1)(s) of the 1979 constitution as amended by Decree 107 of 1993 now section 251 (1)(r) of the I 999 Constitution, the FCT High Court had jurisdiction to hear the case.
It was submitted by the learned Counsel for the Appellant that the Appellant is undoubtedly, an agency of the Federal Government who terminated the appointment of the Respondent, its employee and that the cause of action arose on 8/3/1996. He said by virtue of Section 230(1)(s) of the 1979 Constitution, as amended by Decree 107 of 1993, all actions against the Federal Government or any of its agencies, challenging their executive or administrative action or decision was within the exclusive jurisdiction of the Federal High Court, According to him, the Respondent is challenging the executive action of the Appellant terminating her appointment and so it was the Federal High Court and not a State High court had jurisdiction to hear and determine the case, relying on the case of A.G. v. CBN (1997) 4 NWLR (498) 192 which was said to be on all fours with the Respondent’s case as well as cases of
NEPA v. EDEGBENRO (2002) NWLR (798) 79,
UNILORIN V. ODUTOLA (1998) 12 NWLR (516) 72, and
AYENI v. UNILORIN (2002) 2 NWLR (644) 290 at 302. Learned counsel then submitted that the issue of jurisdiction can be raised for the first time on appeal and that the Appellant had in paragraph 16 of the statement of defence raised the issue of jurisdiction of FCT High court on the ground that the Respondent’s action was statute barred. Further that the issue of jurisdiction of a trial court is so fundamental that the parties cannot by consent confer it on a court and we were urged to hold that the High Court had no jurisdiction to hear the Respondent’s case and to answer the issue in the negative.
On issue 2, which deals with the refusal by the High Court of the Appellant’s application for extension of time to enter appearance and file a statement of defence, it was submitted that all that an applicant needs do is to satisfy the court that it has sufficient and compelling reason for not performing the action within the prescribed period. He argued that the Appellant had explained its reason as to why it could not file its defence within time and showed its seriousness in the desire to defend. The statement of defence was attached to the affidavit in support of the application but the High court did not consider it or submissions by him before it refused the application.
It was also his contention that the application was not refused on the ground of lack of sufficient materials before the court but that the Appellant was punished for the mistake of its counsel. It was submitted that in applications like that of Appellant, where reasons were given for the delay and the Respondent could be compensated by costs, a court would exercise its discretion in favour of the application so that a case would be heard on the merit .
Learned Counsel cited Order 13 Rule 5(1) and (2) of the FCT High Court Rules which provide that a Defendant can enter appearance at any time before judgment and order 47(l) which requires the court to grant an order which it considered necessary for doing justice to the parties whether or not asked for. He maintained that the High court had sufficient materials to warrant arresting its judgment by the grant of the Appellant’s application to bring in its defence to the Respondent’s action.
The case of BOB-MANUEL v. BRIGGS (2003) 5 NWLR (813) 323 at 340-l was referred to and it was again argued that the High Court did not consider the statement of defence and that it had a duty to consider the cases of both parties before entering judgment on the authority of USMAN v. GARKE (2003) 14 NWLR (840) 261 at 287. Lastly on the issue, it was submitted that the High Court did not exercise its discretion judiciously and judicially and we were urged to so hold and answer the issue in the negative.
On the last issue (3), which is whether on the evidence before the High Court, the Respondent was entitled to judgment, the submissions by learned Counsel are that the Respondent made assertions in her case and so had the duty to prove the case on the balance of probabilities. That the Respondent had to prove that her appointment was wrongly terminated by pleading and adducing evidence to prove the conditions of service showing the circumstances under which her appointment can be terminated and who had the authority to terminate the appointment. The case of ADAMS v. LSDPC (2000) 5 NWLR (656) 291 at 316 was relied on where it was held that in an action for wrongful termination of appointment, the plaintiff must plead and prove certain material facts as follows:-
a. That he is employed by the Defendant.
b. The terms and conditions of his appointment including duration and termination.
c. Who can appoint and remove him.
d. The circumstances under which his appointment can be terminated.
e. That his appointment can only be terminated by a person or authority other than the Defendant.
It was the submission of Counsel that the Respondent did not prove her case as required by law in that she did not call any other witness to the fact that she has admitted in Nassarawa Clinic and that the mere fact that the Appellant made a report to the Police about fraud committed in its Jos office and the police arrested some members of staff including the Respondent in the course of their investigation amounted to the Appellant setting the law in motion against the Respondent. That it was the police on their own that from the pleadings and evidence before the High Court, arrested the Respondent and subsequently cleared her. Learned Counsel said for the Respondent to succeed in an action for unlawful arrest and detention against the Appellant she must establish that the Appellant set the law in motion without just cause and it actively participated in seeing that the Respondent was arrested and detained by the police, placing reliance on TOTOR v. AWEH (2000) 2 NWLR (644) 309 at 318 and MCLAREN V. JENNINGS (2003) 3 NWLR (608) 470 at 485. It was his further argument that for the Respondent to succeed on the claim for unlawful arrest and detention, she must show that there was no ground for her arrest by the police or no fraud was committed in the Appellant’s office which was reported to the police. He pointed out that the Respondent had admitted that fraud was committed in the Appellant’s office in respect of which she along with some other members of staff were arrested by the police and so her arrest and detention was the sole decision of the police. He argued that the High Court did not consider the evidence by the Respondent on that point and that on the whole, the Respondent had failed to prove her case on the balance of probabilities and so the High Court was wrong to have entered judgment in her favour.  We were urged to answer the issue once again, in the negative.
In conclusion, we were invited to allow the appeal, strike out the Respondent’s case for want of jurisdiction on the part of the High Court or set aside the judgment of that court and order a retrial before a different court.
The issue 1 on jurisdiction is a threshold one that if successful would overtake or subsume the other two issues raised in the appeal. It is now common knowledge in law that a real or genuine issue of jurisdiction of a court is so intrinsic and fundamental in judicial proceedings from commencement to final disposal that it can be raised at any stage thereof by either the parties or the court on its own motion. This position of the law is justified on the ground that jurisdiction of a court which usually means the court’s authority and power to entertain a case brought before it, was/is conferred by Statutes creating the courts and so the parties cannot by their agreement or consent vest such jurisdiction on a court over their case where or if it was not conferred by the Statute. In the absence of the requisite jurisdiction on the part of a court therefore, any proceedings thereof in terms of decisions or orders in a case, no matter how otherwise very well conducted, would be null, void and of no legal effect ab initio. See: OLOBA v. AKEREJA (1988) 7 SCNJ. 56.
OSIBAMOWO v. OSIBAMOWO (1991) 3 NWLR (177) 85.
UTIH v. ONOYIVWE (1991) I NWLR (166)166.
OKIKE v. L.P.D.C. (NO.2) (2005) 7 SC. (III) 75.
OWNERS OF THE MV “ARABELE” v. NAIC (2008) 8 MJSC, 145. So the submission by learned Counsel for the Appellant that the issue of the jurisdiction of the High Court to entertain the Respondent’s claim can be raised in this Court for the first time is right since it is in line with the position of law established in these cases. In fact, the Supreme Court had held in the case of STATE v. ONAGORUWA (1992) 2 SCNJ I at 9 that:
“It is never too late or premature to raise the issue of jurisdiction  once properly raised, should be determined first”
Similarly the position of the law was emphasized by the apex Court in the case of ODUTOLA v. UNILORIN (2004) 11-12 SC 214 at 219 that-
“There can be no doubt that the issue of jurisdiction is a threshold issue which may be considered at any stage in the coarse of proceedings. This question has been determined is a long line of cases that at any stage of the proceedings, be it at the pre-stage trial of the case, during trial, or during the hearing of the appeal by the Court of Appeal and even in the Supreme Court.”
Now, the ground upon which the FCT High Court’s jurisdiction was questioned by the Appellant as seen in ground of appeal ONE and the issue 1 both set out earlier, is that the Respondent’s action challenged the executive action of terminating her appointment by the Appellant; an agency of the Federal Government over whom exclusive jurisdiction was vested in the Federal High Court by virtue of the provision of Section 230(1)(s) of the 1979 Constitution as amended by Decree 107 of 1993. There is no doubt that the Appellant is an agency of the Federal Government and I do not need to further determine the point in the determination of the appeal. The provisions of Section 230(1)(s) of the 1979 Constitution as amended by Decree 107 are said by the learned Counsel in his brief of argument to now be the provisions of Section 251(1)(r ) of the 1999 Constitution which are as follows:-
“251.-(1) Notwithstanding any thing to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred 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 causes and matters –
(r) any action or proceeding 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.”
From the record of the appeal, the writ of summons taken out by the Respondent from the Registry of the FCT High Court in the claims against the Appellant, which appears at pages 1-2, was dated the 10th of October,2001. By the averment in paragraph 16 of the statement of claim of the Respondent which is at pages 3-7 of the printed record of appeal, the Respondent’s appointment was terminated vide a letter dated 8/3/96 with Ref. No, Z.2/D.3/VOL/XXV/09. It is therefore manifest that the fact or combination of facts on which the claims of the Respondent were based and which if proved would entitle her to a remedy against the Appellant or the cause of action in the Respondent’s case, arose on the 8/3/96 when she received the letter terminating her appointment.
By that date and time the provisions of Decree 107 of 1993 were in application and therefore defined and regulated the jurisdiction of the State and that of the FCT High Court to hear and determine the civil rights and obligations in cases that come before them. In the case of AGBAJO v. ATTORNEY-GENERAL OFTHE FEDERATION. (1968) 2 NWLR (23) 528, it was held that:-
“It is the law which is in force at the time the cause of action arose that must be applied and not the law in force at the time the suit was filed”
However in the case of the law relating to the jurisdiction of a court to entertain a suit, the law applicable is that in force at the time the suit was instituted or commenced. See also:
ATTORNEY GENERAL OF LAGOS STATE v. DOSUNMU (1989) 3 NWLR (III) 552.
DIN v. ATTORNEY GENERAL OF FEDERATION (1988) 4 NWLR (87) 147.
See also:
UWAIFO v. A.G. BENDEL STATE (1982).7 SC. 124.
UTIH v. ONOYIVWE (supra) at 207.

Section 230(1)(s) of the Decree 107 of 1993 had provisions in precisely the same words with the provisions of Section 251(1)(r) of the 1999 Constitution set out above. The provisions in the Decree were in fact lifted and repeated in the 1999 Constitution as Section 251(1)(r). To that extent, learned Counsel is right that the provisions of the Decree are now Section 251(1)(r ) of that Constitution and so applicable to the Respondent’s action on the issue of whether or not the FCT High Court had jurisdiction to entertain the Respondent’s case.

It would be pertinent speaking generally, to refer to the principles by which a court ought to be guided in the determination of whether or not it has jurisdiction, also known as competence, to adjudicate upon a matter or case brought before it. On this point, I must refer to the case of MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341 at 348, the locus classicus authority wherein the guiding principles of law were in aptly enunciated as follows:-
“A court is said to have the requisite jurisdiction and competence to hear and determine a matter before it in the following instances : –
(a) If it is properly constituted with respect to number and qualification of its membership;
(b) The subject matter of the action is within its jurisdiction;
(c) The action is initiated by due process of law and
(d) Any condition precedent to the exercise of its jurisdiction has been fulfilled. ”
We are in this appeal concerned with instance (b) above which deals with the subject matter of an action being within the jurisdiction of a court. In addition the satisfaction of the other instances set out in (a), (c) and (d) above, a court would and can only have the requisite jurisdiction and competence to determine a matter or suit brought before it if the subject matter of the suit is within the jurisdiction conferred or vested in that court either by the relevant constitutional or Statutory provisions.
For our purposes here, the FCT High Court at the time the Respondent instituted her suit before it, by issuing the writ of summons mentioned earlier in this judgment, in 2001 was vested with its jurisdiction by the provisions of section 257(1) of the 1999 constitution. The provisions of the Section are as follows:-
“257.-(1) Subject to the provisions of section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”
It is clear as crystal that the jurisdiction conferred on the FCT High Court by or in the above provisions has been subjected and made subordinate to the earlier provisions of Section 251 of the same constitution which confers the Federal High court with exclusive jurisdiction in cases listed and set out therein. The Supreme court in the case of FEDERAL REPUBLIC OF NIGERIA v. OSAHON 2006 ALL FWL (312) 1975 at 2030 had stated the import of the use of the words “subject to” in Statutes when it said:-
“The expression ‘subject to’ when used in a statute means liable, subordinate, subservient, or inferior to, governed or affected by; provided that or provided; answerable for. The term introduces a condition, a restriction, a limitation, a provision. It subordinates the provisions of the subject section to the section empowered by reference thereto und which is intended not to be diminished by the subject section. The expression generally implies that what is ,subject to, shall govern, control and prevail over what follows in that subject section of the enactment, so that it renders the provisions to which it is subject conditional upon compliance with or adherence to what is prescribed in the provision referred.”
See also:
TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (117)
LABIYI V. ANRETIOLA (1992) 8 NWLR (285) 139,
NDIC V. OKEM ENT. LTD. (2004) ALL FWLR (210) 1176.
In the above con, the jurisdiction conferred on the FCT High Court under Section 257(1) has been restricted, limited and curtailed by being subjected and made subordinate to the exclusive jurisdiction vested in the Federal High Court under Section 251. In ordinary language, the jurisdiction of the FCT High Court is inferior to that of the Federal High Court in the cases listed in Section 251 such that the FCT High Court’s jurisdiction in those cases was completely taken away from it and exclusively vested in the Federal High Court. In all the causes or matters set out in Section 251(1), the FCT High Court would consequently have no jurisdiction on the subject matters therein and the instance (b) set out in the MADUKOLU v. NKEMDILIM case would not be fulfilled to enable it have the requisite jurisdiction and competence to adjudicate. The question that agitates itself now is whether the act or action of the Appellant terminating the appointment of the Respondent was an executive or administrative decision or action the validity of which was affected by the reliefs sought by the Respondent in the case before the FCT High court so as to bring it within the purview of the provision of Section 251(1)(s) of the constitution. Put in brief, are the provisions of Section 251(1)(s) applicable to the Respondent’s action as to deprive the FCT High Court of jurisdiction to entertain it?
From the letter received by the Respondent terminating her appointment which was admitted in evidence at the trial before the FCT High court and marked as Exhibit F, the act of the termination was an executive as well as an administrative decision and action by the management of the Appellant.
By the averments in paragraphs 18, 21 and claim in 24(a) of the Respondent’s statement of claim and Respondent’s evidence at page 36 of the record of appeal, the Respondent is clearly challenging the validity of such decision or action by saying that it was wrongful. The Appellant being an agency of the Federal Government as stated before now, the claims by the Respondent before the FCT High Court undoubtedly were caught up and fall within the purview of the provisions of Section 251(1)(r) of the 1999 constitution which vest exclusive jurisdiction over them on the Federal High Court, thereby depriving the FCT High Court of the requisite jurisdiction and competence to adjudicate over the claims. I am in no doubt that with the provisions of that Section, the FCT High court lacked and still lacks the competence to adjudicate on the claims by the Respondent which seek inter alia for declaration affecting the validity of the executive and administrative decision by the Appellant, agency of the Federal Government, of terminating her appointment. I find support for this position in the decision of this court in the case of F.M.C.T. v. EZE (2006) ALL FWLR (323) 1704 at 1721 where it was held thus:-
“By Section 251(1)(r), the Federal High Court also has exclusive jurisdiction subject to the provisions of the Constitution, in cases involving the Federal Government or any of its agencies or in proceedings for declaration or injunction affecting the validity of any executive action or decision by the Federal Government or any of its agencies.”
[See also: NEPA v. ADEGBENRO (2002) FWLR (139) 1556; (2002) 12 SCNJ. 173.
ODUTOLA v. UNILORIN (supra).
DIRECTOR. S.S.S. v. OJUKWU (2006) ALL FWLR (339) 979 at 987-8.
ESSI v. NPA (2006) ALL FWLR (311) 1909 at 1921. The position is further strengthened by the Supreme Court in the case of OLORUNTOBA-OJU V. ABDUL-RAHIM (2009) 13 NWLR (1157) 83 at 126-7 where after setting out the provisions of Section 251(1)(p),(q) and (r) of the 1999 Constitution it said:-
“A community reading of these provisions shows that the Federal High Court is vested with the power to enter into adjudication of any action or proceedings seeking declaratory or injunctive reliefs.”
For the above reasons, I do not hesitate in answering and resolving the Appellant’s issue one in the negative, in favour of the Appellant. The FCT High court lacked as at 2001 and still lacks the requisite jurisdiction and competence to adjudicate on the Respondent’s claims for declaration which challenged the executive action or decision by the Appellant, to terminate her appointment.

My resolution of the above issue has the unavoidable legal consequence and effect that since the FCT High court lacked the competence to adjudicate on the Respondent’s suit, all proceedings purportedly conducted in the absence of the necessary vires were wasted efforts, legally useless and judicially null, void and of no effect ab initio, from the beginning to the end. I have earlier stated the crucial nature of the issue of jurisdiction in the realm of adjudication by the courts and restated the position of the law, that because it is the bedrock of all trials, a trial without jurisdiction is a nullity, an exercise in futility from the beginning to the end and so nothing can validly come out of such purported proceedings. This is because the existence or absence of jurisdiction in the court of trial, goes to the root of the suit so as to either sustain or nullify the proceedings and the end products thereof. For that reason, the issue two (2) raised by the learned counsel for the Appellant has been overtaken and subsumed in the determination of the issue 1. As a reminder, the Appellant’s issue 2 is whether the FCT High court had exercised its discretion judicially and judiciously in its decision to refuse the Appellant’s application for extension of time to enter appearance and file a statement of defence to the Respondent’s case. In the absence of jurisdiction and competence to adjudicate over the Respondent’s case, the issue 2 has clearly been rendered academic in this appeal by the resolution of issue 1.
The same is the effect on the issue 3 on whether on the evidence before the FCT High court, the Respondent was entitled to the judgment entered in her favour. The absence of the jurisdiction on the part of that court, had automatically rendered the judgment a nullity, incapable of conferring any benefit on the Respondent.
I am not unmindful of the exhortation on this Court by the apex Court of the land that the Court is to decide all issues that have been placed before it by the parties being an intermediate court in the hierarchy of courts in the country. I however rely on the exception provided for the court by the apex Court in the case of FED. MINISTRY OF HEALTH v. C.S.A. LTD (2009) 9 NWLR (1145) 193 at 220-1 where the above requirement was restated.
The Supreme Court had said:-
“Except in the Supreme Court, all issues ought and must be considered and dealt with by the intermediate court, except or unless in the clearest of cases, the Court of Appeal should endeavour to resolve or pronounce on all issues put before it.”
I have indicated elsewhere in this judgment that I have no doubt that on the present state of the law, the principles of which were stated and restated in the cases cited on the issue, that the FCT High court lacks jurisdiction to adjudicate on the Respondent’s claim pursuant to the provisions of section 251(1)(r) of the 1999 constitution. This appeal is therefore one “in the clearest of cases” made an exception to the duty to resolve and make pronouncement on all the issues put before this court. But having even commented on the two (2) other issues in the appeals and holding that they have been overtaken by the resolution of issue 1, I have considered and made pronouncement of the said issues.
The duty therefore to consider the other issues in detail has abated since they have been rendered merely academic for the purpose of the appeal. See: COOKEY v. FOMBO (2005) 5 SC (II) 102 at 111. UZUDA v. EBIGAH (2009) 15 NWLR (1163) 1 at 22; another Supreme Court decision.
In the final result, I find merit in the Appellant’s appeal and allow it on the ground of want of jurisdiction on the part of the FCT High Court to entertain the Respondent’s suit. Consequently the judgment of that court, subject of the appeal, is set aside and the Respondent’s case struck out for want of jurisdiction by the trial Court.
The Appellant is to bear its costs of prosecuting the appeal.

PAUL ADAMU GALINJE, J.C.A.: I have read before now the judgment just delivered by my learned brother Garba, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
For the same reasons ably articulated in the lead judgment, the judgment of the lower court is set aside, and the Respondent’s case struck out for want of jurisdiction.
Appellant is to bear its cost of prosecuting this appeal.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the Lead Judgment of My Lord MOHAMMED LAWAL GARBA, JCA, just delivered and I agree with My Lord’s reasoning and conclusion.
The issue of Jurisdiction is so fundamental to adjudication and ought always to be addressed first.
This is so because a court without Jurisdiction is without vires to determine any issue in the case and the proceedings, judgment and order made by the Court become an exercise in futility and constitute a nullity.
See – Labiyi v. Anretiola (1992) 8 NWLR Part 258 Page 139.
This appeal is meritorious and it is allowed by me. I endorse the consequential orders made in the said lead judgment.

Appearances

Samuel Zibiri, Esq. leading Paul Golu, Esq.For Appellant

AND

Respondent absent and not represented; but served on 10/1/11 through Counsel.For Respondent