IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT HIGH COURT MAITAMA – ABUJA

BEFORE: HIS LORDSHIP HON. JUSTICE S. U. BATURE

COURT CLERKS: JAMILA OMEKE & ORS
COURT NUMBER: HIGH COURT NO. 24
CASE NUMBER: SUIT NO. FCT/HC/CV/2906/2021
MOTION NO. FCT/HC/M/9211/21
DATE: 5/42022

BETWEEN:

1. ROHI PROPERTIES LIMITED

………………………..…..APPLICANTS
2. BARR. ISAAC ANUMUDU

AND

1. NASIRU M.T. LIMAN

2. MANSUR M.T. LIMAN

3. MUNTASIR M.T. LIMAN …………..RESOPONDENTS

4. IBRAHIM M.T. LIMAN

5. ALHAJI BUKAR MOHAMMED

6. HON. USMAN A. SHAIBU

DISTRICT COURT 1 OF THE FEDERAL
CAPITAL TERRITORY, WUSE ZONE 2,
ABUJA.

APPEARANCES:
Isaac Anumudu Esq for the Plaintiff/Applicant with Martha Okpe Esq and C.
J. Nnamdi Esq.

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Jerry Musa Ombugadu Esq with Nafisat Akinsola Esq for the 1st – 5th
Respondents.

JUDGMENT

Before this Honourable Court is a Summons on Notice dated 13 th day of

December, 2021 and filed on 14th day of December 2021 which was
brought pursuant to Order 44 Rule 5 of the High Court of the Federal
Capital Territory, Abuja (Civil Procedure) Rules 2018, Section 6(6) of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended) and
under the inherent jurisdiction of this Honourable Court.

The Applicant herein prayed this Honourable Court for the following Orders:

“(1). AN ORDER of Certiorari to bring into this Honourable Court

for the purpose of being quashed the entire proceedings of
and the hearing Notice of the Grade 1 District Court of the
Federal Capital Territory, Abuja Holden at Wuse Zone 2,
Abuja issued on the 2nd day of July, 2021 directing the
Applicants Namely: ROHI PROPERTIES LIMITED AND
BARRISTER ANUMUDU to appear on the 7 th day of July,
2021 before the 6th Respondent to continue the trial of a
matter in which the 6th Respondent has shown open and
repeated bias, and after the same matter has been
transferred from his District Court on the Directive of the
Chief Judge as conveyed by the Chief Registrar of the High
Court of the Federal Capital Territory Abuja, following
series of petitions by the Applicants to the Chief Judge of
the Federal Capital Territory, Abuja and Chairman of the
FCT Judicial Service Committee.

(2). A DECLARATION that the entire proceedings and actions

of the Grade 1 District Court, sitting at Wuse Zone 2 in the
Federal Capital Territory, Abuja especially the issuance of
the Hearing Notice dated 2nd July, 2021, are without
jurisdiction by purporting to take cognizance of the 1st to
5th Respondent’s suit and continue the hearing of same
even after he has been removed as a District Judge and
appointed as Director, and after the matter has been duly

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 transferred away from his Court and taken over by another
District Judge.

(3). A FURTHER DECLARATION that the entire proceedings

and actions of the Grade 1 District Judge sitting at Wuse
Zone 2 in the Federal Capital Territory, Abuja, especially
the continuation of the proceedings as a purported tenancy
matter in a District Court, was clearly ultra vires and
without jurisdiction (or in excess of jurisdiction),
particularly after admitting document as evidence of title
(in the form of Irrevocable Power of Attorney) through the
5th Respondent, shown the Irrevocable title of the
Applicants herein to the property in issue.

(4). AN ORDER of this Honourable Court setting aside the

proceedings and Hearing Notice of the Grade 1 District
Court of the Federal Capital Territory, Abuja Holden at
Wuse Zone 2, Abuja issued on the 2nd day of July, 2021
directing the Applicants namely: ROHI PROPERTIES
LIMITED AND BARRISTER ISAAC ANUMUDU to appear on
the 7th day of July, 2021 before the 6th Respondent continue
the trial of a matter in which the 6th Respondent has shown
open and repeated bias, and after same matter has been
transferred from his District Court on the directive of the
Chief Judge conveyed through the Chief Registrar of the
High Court of the Federal Capital Territory, Abuja, following
series of petitions by the Applicants to the Chief Judge of
the Federal Capital Territory, Abuja and Chairman of the
FCT Judicial Service Committee.

(5). AN ORDER OF PROHIBITION prohibiting the Grade 1

District Court, Wuse sitting at Wuse Zone 2 in the Federal
Capital Territory, Abuja from further proceeding with Suit
No. CV/272/2015.

(6). AND FOR SUCH FURTHER ORDER OR ORDERS as this

Honourable Court may deem fit to make in the
circumstance and in the overall interest of justice.”

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Filed in support of the application is a 17 paragraphed affidavit deposed to
by one Charles Jonah, an Associate Counsel in the law firm of Anumudu
and Associates the Counsel to the Applicant herein. Attached to the
supporting affidavit are annextures marked as Exhibit CSJ1 TO CSJ 10
respectively.

Equally filed is a statement stating the name and description of the

Applicant, the relief sought, the grounds upon which the application was
predicated and the facts in support. Also filed is a Written Address in
support of the application dated 13th day of December, 2021. In addition,
the Applicants filed a Further and Better Affidavit of 12 paragraphs deposed
to by one Martha Okpe a legal practitioner in the law firm of Anumudu &
Associates, the Counsel to the Applicants.

While moving the application on 8th day of February, 2021 Counsel to the
Applicants I. C. Anumudu Esq adopted their processes and urged the Court
to grant the application as prayed.

In the said Written Address in support of Summons on Notice, Applicants’

Counsel formulated two issues for determination to wit:

“(1). Can a party as in this instant case, a Judge, whom has

shown repeated bias be allowed to proceed to hear and
determine the matter.

(2). Whether this Honourable Court can grant an application for

judicial review.”

In arguing the issue, Counsel submitted on issue one that bias in its
ordinary meaning is opinion or feeling in favour of one side in a dispute or
argument resulting in the likelihood that the Judge so influenced will be
unable to hold an even scale. In this respect, Counsel cited the cases of
KENON V TEKEN (2007) 7 SC (Pt.110) 49; ABIOLA V STATE (2019)
LPELR-47462 (CA).

In another submission, Counsel stated that an allegation of bias or

likelihood of bias against a Judge is usually a very serious matter not to be
taken with nonchalance. In support of this, reference was made to the case
of INOMILOJU & ORS V OGISANYIN-AMBEIRE & ORS (2010) LPELR-

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3503 (SC); ADEBESIN V STATE (2014) LPELR-22694 (SC); METUH V
F.R.N (2021) 6 NWLR (Pt. 1771) p. 85.

Consequently, Counsel submitted further that the proceedings after the

directive that the case file be transferred and the continuous sitting over the
matter is flawed for contravention of Section 36 of the Constitution of the
Federal Republic of Nigeria 1999 (as amended) and as such vitiates the
entire proceedings.

Finally, on issue one, it is the contention of the learned Counsel that the
Court below which was presided over by Hon. Shuaibu in Suit No.
CV/272/2015 appears to give more favour to the Respondents in the suit
having made utterance, attention, actions (of which a more recent one, the
17th day of November 2021) where he presided over the matter shows
sufficient inclination of his bias towards the Applicants.

To this end, Counsel submitted that justice itself is rooted in confidence and
once confidence is eroded by genuine evidence of bias or real likelihood of
bias no justice can result from such a trial. Reliance was placed on the
cases of UBN V FRN (2018) LPELR-46552 (CA), OME-EBO & ANOR V E.
GBUNIKE & ANOR (2019) SC.

On issue two which is whether this Honourable Court can grant an

application for judicial review. Counsel submitted that following the series
of event of continuous sitting and presiding over Suit No. CV/272/2015
especially after this Honourable Court gave her order that parties should
stay proceedings pending the determination of the application for judicial
review, this Honourable Court is called upon to quash the entire
proceedings of the District Court in terms of an order of certiorari for judicial
review. In this respect, Counsel cited the cases of HADEJIA V LADAN &
ORS (2018) LPELR-45638 (CA); AKINGBOLA V F.R.N (2018) 14 NWLR
(Pt. 1640) Page 402.

Moreso, learned Counsel stated that the Applicants are seeking for an
Order of Prohibition, prohibiting the Grade 1 District Court Wuse sitting at
Wuse Zone 2 in the Federal Capital Territory, Abuja, from further
proceedings with Suit No. CV/272/2015. Counsel placed reliance on the
case of ADEBUYI & ANOR V SILVA & ORS (2020) LPELR-51422 (CA).

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Similarly, Counsel stated that the Applicants in this case are seeking for an
Order of Certiorari to bring to this Honourable Court for the purpose of
being quashed the entire proceedings of and the hearing notice of the
Grade 1 District Court in the Federal Capital Territory Abuja holden at
Wuse Zone 2, Abuja issued on the 2nd day of July, 2021 directing the
Applicants namely: ROHI PROEPRTIES LIMITED AND BARRISTER
ISAAC ANUMUDU to appear on the 7th day of July 2021 before the 6th
Respondent Counsel cited in support the cases of ARINZE V JIBRIN &
ORS (2017) LPELR-43389 (CA); JUDICIAL SERVICE COMMISSION OF
CROSS RIVER STATE V YOUNG (2013) 11 NWLR (Pt. 1364).

To this end, Counsel referred the Court to Exhibits CSJ 1 and CSJ 2 as
well as Section 13(2)(a) of the District Courts Act, Cap 495 Laws of the
Federation, 1990, Section 39(1)(a)(b) and 2 of the Land use Act and stated
that the moment those Exhibits were brought to the attention of the learned
senior District Judge in the course of the trial, he ought to have declined
continuing with the trial. The continuation of which was now manifestly
without competence and wholly devoid of jurisdiction. Reliance was placed
on the cases of AINIA FOWLER V ALFRED O. FOWLER (1964) A.N.L.R
50 AT 452-454; C.B.N V RAHAMANIYYA G.R. LTD (2020) 8 NWLR (Pt.
1726) 324.

Finally, Counsel urged the Court to grant the prayers sought by the
Applicants.

In opposing the application, the 1st – 5th Respondents filed Joint Counter
Affidavit deposed to by one Tajudeen Ayeni, Litigation Secretary in the law
firm of S. G. Kekere-Akpe & Co, the law firm representing the 1st to 5th
Respondents in this suit. Attached to the Counter Affidavit is an annexture
marked as Exhibit M.T. 1. Equally filed in support of the Counter Affidavit is
a Written Address dated the 7th day of February, 2022.

Addressing the Court in response to the motion moved, learned Counsel to

the 1st to 5th Respondents, Jerry Ombugedu Musa Esq, adopted their
processes filed in opposition and urged the Court to dismiss the application
with punitive cost.

In the said Written Address in support of the Counter Affidavit, Counsel

formulated a lone issue for determination to wit:-

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 “Whether the Applicants are entitled to the grant of the reliefs
sought.”

In arguing the issue, Counsel submitted that the Applicants have not met
the threshold requirement for the grant of the judicial review reliefs of
certiorari and prohibition and as such the application should be dismissed
with punitive costs. In support of this, Counsel cited the cases of LAWAL V
QUADRI (2004) 6 NWLR (Pt. 868) 1 (CA); EZENWA V BESTINAY
ELECT. MFT. LTD (1999) 8 NWLR (Pt. 613) 61 (CA).

On the principles guiding the grant of Order of Certiorari Counsel cited the
cases of WEMABOD ESTATES LTD V JOYLAND LTD (2001) 18 NWLR
(Pt. 744) 22; OKOYE V LAGOS STATE GOVT. (1990) 3 NWLR (Pt. 136)
115 (CA).

Consequently, Counsel submitted that it is trite that an Order of prohibition

can only be granted where the lower Court has acted beyond its jurisdiction
and that Order of Prohibition is discretionary, like every discretionary
power, it is to be exercised judicially and judiciously. Reference was made
to the case of COMM. FOR LOCAL GOVT. V EZEMU OKWE (1991) 2
NWLR (Pt.181) 615 (CA).

The learned Counsel referred the Court to the 1st – 5th Respondents’
Counter Affidavit and submitted that it is abundantly clear that there has
been no form of bias exhibited by the 6th Respondent in the suit before the
District Court.

Moreso, Counsel submitted that there has not been any violation of the
Applicants’ right to fair hearing. That if the Applicants were not served with
a hearing notice and proceedings went on in their absence that would have
been a valid ground to cry foul of fair hearing. Counsel relied on the case
of NWOKANMA V AZUOKWU (2000) 8 NWLR (Pt. 670) 767.

In another submission, Counsel stated that complaint of bias alluded by the

Applicants, having been shown to be without substance cannot ground the
reliefs of certiorari and prohibition in favour of the Applicants. To this
extent, Counsel urged the Court to so hold.

It was further submitted that by virtue of the District Court Act, the District
Court of the Federal Capital Territory is conferred with jurisdiction to
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entertain civil matters relating to landlord and tenant and that the lower
Court had jurisdiction to entertain the matter, as the rent amount in issue
was within its jurisdiction.
The learned Counsel referred the Court to paragraphs 2.2. to 2.4 of the
Applicants Written Address and Exhibit CSJ 10 and submitted that it is trite
that an Applicant for an Order of Certiorari has a duty not to suppress or
misrepresent facts to the Court. Reliance was placed on the cases of
PASSCO INT’L LTD V UNITY BANK PLC (2021) 7 NWLR (Pt. 1775) 224;
WEMABOD ESTATES LTD V JOYLAND LTD (2001) 18 NWLR (Pt. 744)
22.

In that respect, Counsel submitted that this application of certiorari should

be refused as the Applicants have misrepresented facts concerning the
proceedings of 17th November, 2021 to this Honourable Court and urged
the Court to so hold.

Again, Counsel referred the Court to the cases of KOREA NAT. OIL
CORP. V O.P.S (NIG) LTD (2018) 2 NWLR (Pt. 1604) 394 S.C.;
NWAOBOSHI V MILAND DELTA STATE (2003) 11 NWLR (Pt. 831) 305
S.C and submitted that from the record of proceedings of 17th November,
2021, no due cause has been disclosed and no error is apparent on the
proceeding. Thus, the reliefs of certiorari and prohibition cannot lie.

In his further submission, Counsel stated that in an application seeking the

relief of certiorari, the Applicant is mandated, as a condition precedent, to
place before the superior Court the proceedings which were conducted in
excess of jurisdiction and which sought to be quashed. Reliance was
placed on the cases of ONYEKWULUJE & ANOR V BENUE STATE
GOVERNMENT & ORS (2005) 8 NWLR (Pt. 928) 514 at 640; LEKWOT V
JUDICIAL TRIBUNAL (1997) 8 NWLR (Pt. 515) 22 at 36.

Consequently, Counsel stated that the Applicants in the instant case have
failed to attach a copy of the proceeding which they claim was in excess of
jurisdiction and in contravention of the Court Order.

On the effect of failure to attach a copy of the proceeding sought to be

quashed in an application for an Order of Certiorari, Counsel cited the case
of OGBORIEFON V OGBORIEFON & ANOR (2011) LPELR -3740 (CA)
and submitted that this Honourable Court cannot quash what is not before

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it and cannot embark on a fruitless voyage of speculation. Therefore
Counsel urged the Court to dismiss this application accordingly.

To this end, Counsel stated that, it is the contention of the Applicants that
the tendering of an Irrevocable Power of Attorney cited title to the premises
and ousted the jurisdiction of the District Court, Counsel submitted that an
Irrevocable Power of Attorney does not pass title. Reference was made to
the case of EZEIGWE V AWUDU (2008) 11 NWLR (Pt. 1097) 158 SC.

Finally, Counsel urged the Court to dismiss this application with punitive
costs and resolve the issue in favour of the 1st to 5th Respondents.

I have meticulously perused the Summons on Notice, the reliefs sought,

the Affidavit in Support, the annextures attached therewith, the grounds
upon which the application was predicated and the Written Address in
support as well as the Further and Better Affidavit. I have equally perused
carefully the 1st – 5th Respondents’ Counter Affidavit in opposition to the
application, the Exhibit attached thereto and the Written Address in support
of the Counter Affidavit.

Therefore in my humble view the issue for determination is whether the

Applicants herein have made out a case for the grant of this application.

Before I dwell on the issue, let me quickly say that I have considered the
submission of the learned Applicants’ Counsel that the entire paragraph 3
of the 1st – 5th Respondents’ Counter Affidavit is offensive to Section 115 of
the Evidence Act and urged the Court to strike them out.

In response to this submission, 1st – 5th Respondents’ Counsel urged the

Court to look at the said paragraph of their Counter Affidavit to ascertain
whether they are offensive or not.

It is important to refer to Section 115(2) of the Evidence Act 2011 for clarity,
it provides thus:-

“An Affidavit shall not contain extraneous matter by way of

objection, prayer or legal argument or conclusion.”

Now, I have studied closely the entire paragraph 3(a) to (r) of the 1 st – 5th
Respondents’ Counter Affidavit. I do not see where or how the said
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paragraph offends provision of the Evidence Act, Section 115(2) (supra). I
so hold. To that extent, the submission of the learned Applicants’ Counsel
in that regard is hereby discountenance.

Having said this, I will now proceed to consider the issue for determination.

In the instant case, the Applicants herein prayed the Court for an Order of
certiorari for purpose of being quashed the entire proceedings of Grade 1
District Court of FCT Abuja and the Hearing Notice issued and directing the
Applicants to appear before the said Court in which the 1 st Respondent has
shown open and repeated bias and after the same matter has been
transferred from his District Court on the directive of the Chief Judge as
conveyed by the Chief Registrar of the High Court of the Federal Capital
Territory, Abuja.

It is germane to begin by saying that this application has again brought to

fore the supervisory power of the Higher Court over the inferior Court or
Tribunal which is usually exercised by an Order of Certiorari and/or
prohibition.

It should be noted at the onset that an Order of Certiorari is of common law

origin and directs for the removal of a certified record of a particular case
tried in an inferior Court or other person or body exercising judicial/quasi
judicial functions for the purposes of being quashed.

Therefore, certiorari was defined by Black’s Law Dictionary, Ninth Edition at

page 258 to mean thus:

“An extraordinary writ issued by an appellate Court at its

discretion, directing a lower Court to deliver the record in the
case for review.”

Similarly, in the case of TRACTOR & EQUIPMENT NIGERIA LIMITED &

ORS V INTEGRITY CONCEPTS LIMITED AND ANOR (2011) LPELR-
5034 (CA) (PP: 16-17, Para C -C) per Galinje, J.C.A. where it was held
thus:-

“A writ of common law origin issued by a superior to an inferior

Court requiring the latter to produce a certified record of a
particular case tried therein. The Writ is issued in order that the
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 Court issuing the Writ may inspect the proceedings and
determine whether there have been irregularities….”

See also the case of MAJOR AMANI IKENNA OFORDUM V THE

NIGERIA ARMY & ANOR (2014) LPELR-22098 (CA).

Furthermore, on the purpose of certiorari, the Court of Appeal held in the

case of AGORUA & ORS V OBIORA & ORS (2013) LPELR-22056 at
Page 25, paragraphs A – C that:-

“It is settled law that the certiorari lies to the High Court to
quash the Orders or the proceedings of an inferior tribunal
which has acted in excess of its jurisdiction and that although
the remedy was in early times limited to Courts in the normal
way, it has since extended to other authorities or bodies
exercising judicial or quash judicial power.”

In addition, on conditions that Court will consider in granting an Order of

Certiorari, it was clearly enumerated in the case of ALH. ALKASIM U.
SULEIMAN & ANOR V UPPER SHARIA COURT NO. 1 G.R.A. ZARIA &
ANOR (2014) LPELR-22905 (CA) (PP. 37 - 38, Paras A -A) per MBABA,
J.C.A. Where it was held thus:-

“It is well settled law that the remedy by Certiorari proceedings

will be granted when any of the following is present:

(i). Lack or excess of jurisdiction

(ii). Error on the face of record of an inferior Court or Tribunal
(iii). Breach of observance of natural justice regarding fair
hearing....”

See also the cases of EKPO V CALABAR LOCAL GOVT. COUNCIL

(1993) 3 NWLR (Pt.281) 324; EZENWA V BESTWAY ELECTRIC MFT.
CO. LTD (1999) 18 NWLR (Pt. 603) 61 at 82; NAGPPE V PHARMACISTS
COUNCIL OF NIG. & ORS (2013) LPELR-21834 (CA).

Now, coming back to the instant case, the crux of this application as can be
glanced from the Affidavit and documentary evidence before the Court is
that the 6th Respondent despite the matter before him was transferred to
another Court by the Hon. Chief Judge, he continues to preside/or hears
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the matter. For clarity and ease of reference, I shall reproduce here under
paragraph 14(d), (e) and (f) of the Supporting Affidavit. It reads thus: -

Paragraph 14(d) “That despite the fact that Court proceedings

had been adjourned to a further date at the
instance of the Court of Idayat Akanni Olaide-
another Chief District Court 1, to which the
matter was transferred to, the Respondents, in
collusion with the Court, has gone ahead to
deny the Applicants his fundamental right to fair
hearing by insisting that the matter be heard by
Hon. Shuaibu, the same District Judge who the
Applicants had requested that he recuse himself
from the case. A certified true copy of the letter
dated 25th October, 2020 communicating the
transfer of the case to Hon. Idayat Akanni Olaide
and requesting Hon. Usman Shuaibu to hand
over the case file is also herewith exhibited as
“EXHIBIT CSJ 7”.

Paragraph 14(e) “That the 6th Respondent, Hon. Shuaibu, despite

the fact that there was a letter from the Court’s
Registrar, asking to retrieve the files of the case
from his custody, has blatantly refused to
release the case file to the Registrar for the case
to be transferred, but rather proceeded to direct
the issuance of the Hearing Notice in EXHIBIT
CSJ 6” above.”

Paragraph 14(f) “That the Applicants on the 5 th day of July 2021

following the series of events wherein the
Honourable District Judge, Hon. Shuaibu
refused to stop presiding over the case, filed an
application for Judicial Review in terms of an
Order of Certiorari to quash the proceedings of
the District Court.”

Moreso, Exhibit CSJ 7 attached to the Supporting Affidavit is clear and

unambiguous on the directive to the 6th Respondent. I shall equally take

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the pains of reproducing some relevant portion of the said Exhibit here for
clarity:

“Sir, based on a Complaint/Petition dated 23rd day of August,

2020 addressed to the Hon. Chief Judge of the Federal Capital
Territory High Court Maitama and the Directive from the office of
the Chief Registrar, FCT High court, Maitama to His Worship
Idayat Akanni Olaide to take over the said case file, for further
adjudication of same.

I have been directed by His Worship Idayat Akanni Olaide to

write and notify you of this development and to accordingly
retrieve the case file for further action. Attached to this letter is
the said Complaint/Petition on which is endorsed the said
Directive.”

From the foregoing, it is apparent that the 6th Respondent lacks jurisdiction
to further or continue hearing the matter as doing same will amount to ultra-
vire. This position was re-echoed by the Supreme Court in the case of
CENTRAL BANK OF NIGERIA & ANOR V MRS. AGNES M. IGWILLO
(2007) LPELR-835 (SC) (PP. 21, Paras F-F), per AKINTAN, J.S.C. that:

“Any action taken outside the powers conferred by the statute or

regulations made thereof will be ultra-vire, null and void…”

Consequently, the proceedings as contained in Exhibit CSJ 10 attached to

the Supporting Affidavit is null and void, having conducted same without
jurisdiction. I so hold.

However, the 1st – 5th Respondents deposed in their Counter Affidavit

particularly at paragraph 3(i) thus:

“Further to the 1st – 5th Respondents’ reply and consideration by

the Chief Judge, Hon. Justice Usman Shaibu was directed to
continue hearing the case, as the earlier decision made was one-
sided (only on the bias of the Applicants’ petition).”

Nevertheless, the 1st – 5th Respondents apart from this deposition, did not
take any step further to exhibit any document to counter Exhibit CSJ 7 to
prove that 6th Respondent was directed to continue hearing the matter.
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Having failed to do so, it is settled law that the Court cannot speculate but
rely on the evidence placed before it. In this respect, I refer to the case of
ZABUSKY V ISRAIL AIRCRAFT IND. (2008) 2 NWLR (Pt. 1070) 133 at
137, Paras F – G where it was held thus:-

“…Courts are not given to speculation, they act on evidence…”

Similarly, it was held in the case of N.B.C.I. V. ALFIDR (NIG) LTD (1993) 4
NWLR (Pt. 187) at 346 that:

“It is settled law that a Court can only act on the basis of the
evidence placed before it…”

In the light of the above and from the totality of all I have said so far, it is my
considered opinion that the Applicants have made out a case for the grant
of this application. I so hold.

However, the submission of the learned Applicants’ Counsel that paragraph

3(h) of the Counter Affidavit raised the issue of title and urged the Court to
grant same in their favour as an ancillary prayer, I refer to Order 44 Rule
6(1) of the Rules of this Court. I shall reproduce same hereunder. It
provides thus: -

“Copies of the Statement in Support of an application for leave

under Rule 3 shall be served with the Notice of Motion or
Summons and subject to sub-rule 2, no grounds shall be relied
upon or any relief sought at the hearing except the grounds and
the reliefs set out in the Statement.”

From the wording of the rules quoted above vis-à-vis the Statement filed by
the Applicants pursuant to Order 44 Rules 1 and 3 of the Rules of this
Court, there is nowhere the Applicants stated that they are seeking relief of
declaration of title. Therefore, having not stated the said relief by their
Statement, they cannot claim same as ancillary prayer at the hearing of the
application. I so hold.

Before I conclude, it is also worthy of note that the Applicants relief 3 which
is a further declaration that the entire proceedings and actions of the Grade
1 District Judge sitting at Wuse Zone 2 in the Federal Capital Territory,
Abuja, especially the continuation of the proceedings as a purported
14
Tenancy Matter in a District Court, was clearly ultra-vires and without
jurisdiction (or in excess of jurisdiction), particularly after admitting
document as evidence of title (in the form of Irrevocable Power of Attorney)
through the 5th Respondent, showing the irrevocable title of the Applicants
herein to the property in issue has failed because admitting Irrevocable
Power of Attorney as an Exhibit does not change the nature of the case
from tenancy matter. What determines the nature of a case is the claim
before the Court not admitted exhibit. I so hold.

To this end and without further ado, I hereby resolve the issue for
determination in favour of the Applicants against the Respondents and hold
very strongly that this application is meritorious and is hereby granted as
prayed save for relief 3 which is refuse in the interest of justice.

Signed:

Hon. Justice S. U. Bature

5/4/2022.

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