REUBEN OKOLO & ANOR v. CHIEF AUGUSTINE OKOYE (2014)

REUBEN OKOLO & ANOR v. CHIEF AUGUSTINE OKOYE

(2014)LCN/7142(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 22nd day of April, 2014

CA/E/381/2009

RATIO

WHETHER AN ISSUE FOR DETERMINATION IN AN APPEAL CAN BE DERIVED OUTSIDE THE GROUNDS OF APPEAL

It is trite law that all issues for determination in an appeal must derive from one or more of the grounds of the appeal. An issue that is not derived from any of the grounds of an appeal is incompetent and is liable to be struck out. See MAGIT V. UNIVERSITY OF AGRICULTURE (supra). Per EMMANUEL AKOMAYE AGIM, J.C.A.

WHETHER AN ISSUE FOR DETERMINATION MUST BE CONSISTENT WITH THE GROUND FROM WHICH IT HAS BEEN RAISED

An issue raised from a ground of appeal for the determination of the appeal must be consistent with the ground from which it is raised. If it is not consistent with the ground, then it is not derived from that ground. As this court held in NGIGE & ANOR V. INEC & ORS (unreported judgment in Appeal No CA/E/EPT/02/2014 delivered on 15-4-2014) that “an issue can only be regarded as deriving from a ground of appeal if the complain or question if raises is the same with that in the ground from which it purports to be derived.” In AYINDE & ORS V. ADIGUN (1993) 11 SCNJ, the Supreme Court held that issues for determination should not merely be consistent with the ground it derives from, but should fall within the scope and confines of the ground of appeal relied upon. Per EMMANUEL AKOMAYE AGIM, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

Between

1. REUBEN OKOLO
2. VIRGINIA OKOLO (for themselves and on behalf of Eme Okafor family) Appellant(s)

AND

CHIEF AUGUSTINE OKOYE Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On the 12th of November 2008, the respondent herein, as plaintiff commenced suit No. A/285?08 in the High Court of Anambra State against the appellants herein as defendants by filing a writ of summons accompanied by a statement of claim, list of witnesses, witnesses statements on oath, list of documents to be relied on and copies of the said documents.
By a motion on notice dated 18-5-2009 and filed on 19-5-2009, the appellants applied for –
(a) An Order setting aside the service of originating court processes upon a person other than the 1st and 2nd defendants/applicants on record by the process server who purportedly effected the service without any pointer as required by law on the l3th day of March 2009 at Etiti village, Enugwu-Agidi.
(b) An Order setting aside/varying a previous order of this Honourable Court made on the 4th day of May, 2009 for “A PRE-TRIAL CONFERENCE” to be conducted in this suit on the 01/06/09, for WANT OF PERSONAL SERVICE of originating Court processes on the 1st and 2nd defendants/applicants as required by law.”
The motion is accompanied by three supporting affidavits and the appellant’s written address. The respondent on 22-5-2009 deposed to and filed a counter-affidavit thereto accompanied by his written address. The 1st appellant on 25-5-2009 deposed to an affidavit in reply to the respondent’s counter-affidavit. By a motion on notice dated 26-5-2009 and filed on 28-5-2009 the appellants applied for-
(a) An order extending the time within which the defendant/applicants are to file and serve a conditional memorandum of appearance, their statement of defence, list of witness, written deposition on oath, list of document, and other processes.
(b) An order deeming the conditional memorandum of appearance, statement of defence, list of witness, written deposition on oath, list of document and other processes as properly filed and served, appropriate fees having been paid.
(c) And for such further or other Orders as this Honourable Court may deem fit to make in such circumstances
The said motion on notice was accompanied by the memorandum of appearance, statement of defence, list of exhibits to be relied upon by the appellants, list of appellant’s witnesses, a witness deposition on oath and appellants’ counsel’s written address.
The appellants on the 28-5-2009 also filed a pre-trial information sheet dated 26-5-2009.
On the 4-5-2008, Learned Counsel for the appellants appeared for them in this case at the trial court protesting that they had not been served personally. Learned Counsel for the respondent replied that appellants were served by the bailiff of that court on 13-3-2008 and that the affidavit of service was in court and applied for a date for pre-trial conference. The matter was adjourned by the trial court to 1-6-2009 for pre-trial conference. However the record of this appeal show that proceedings in the suit continued at the trial court on 25-5-2009 in the presence of all parties and their respective Counsel. The appellants moved the motion on notice for, inter alia an order to set aside the service of the originating processes upon a person other than the 1st and 2nd respondents. After hearing the arguments of Learned Counsel to both sides, the trial court held that the motion failed and dismissed same adjourning the suit to 1-6-2009 for pre-trial conference.
Dissatisfied with this decision, the appellants on 7-6-2009 commenced this appeal No. CA/E/381/2009 by filing a notice of appeal containing two grounds of appeal. The briefs in this appeal include the appellant’s brief of argument, the respondent’s brief of argument and the appellant’s reply brief. The parties herein adopted their respective briefs of argument.
The appellants in their briefs of argument raised the following issues for determination
1. Whether the Court below was right in refusing to set aside the non-personal service upon the appellants of some of the Originating Court Processes of the Court below as required by law.
2. Whether in the circumstances of this case, the Court below was right in deciding to continue with the proceedings even when the appellants had raised a preliminary objection to that effect, on ground of non service as required by Law, thus questioning Court’s jurisdiction.”
The respondent in his brief of argument raised the following issues for determination-
1. Whether the originating processes were personally served on the appellants/defendants, as of right, on the 13th day of March 2009 by any process server as required by Law.
2. Whether the Court below was right in refusing to set aside the purported non personal service upon the appellants/defendants of some of the Originating Court Processes of the court below.
3. Whether the appellants/defendants have proved their case.”
I will determine this appeal on the basis of the issues determination raised by the appellant. Issue No. 1 as couched by the appellants does not address the complain in ground 1 of this appeal.
Ground 1 complains that-
“The Learned trial judge erred in law when he stated in his ruling thus-
“The issue is that the defendant/appellants accepts the facts of service of originating processes from the plaintiff but grouse being only that such were not served personally on the persons affected”……. and thus occasioned a miscarriage of justice.

PARTICULARS OF ERROR

(a) The protest of the defendants/appellants from the on set was that they were never served personally as required by law.
(b) No order was made by the Court for a substituted service through a named third part.
(c) The named defendants/appellants did not accept that they were served either personally or by substituted means.
(d) The protest appearance by counsel for defendants/appellants on 4/5/2009 when the case was mentioned in Court for the first time was that they were not personally served with the originating processes in this suit.
(e) The High Court (Civil Procedure) Rules 2006 of Anambra State prescribes modes of service of originating processes to wit:-
(a) Personal service
(b) Service by substituted means by Order of Court consequent upon application by the plaintiff to that effect.
(c) Through a defendant’s Legal Practitioner when the defendant has authorized his Legal Practitioner in writing.
None of the modes above was adopted in the present case.”
The ground did not complain that the trial court was not right or was wrong in refusing to set aside the non personal service upon the appellants of some of the originating court processes as required by law. It complained about the trial courts statement of the issue for determination in the application before it, on the basis of which it determined the application and reached the decisions in its ruling. Following the argument of Learned Counsel on both sides for and against the grant of the application, the trial court stated what it understood from the affidavit evidence before it and the arguments of counsel on both sides, as the issue for determination thus- “the issue is that the defendants accepts the fact of service of originating processes from the plaintiff but grouse being only that such were not served personally on the persons affected.” After stating the issue for determination it then proceeded to consider a preliminary issue concerning compliance with a condition precedent before a defendant can enter and defend a suit. Even though it held that the defendants had failed to comply with that mandatory condition precedent it still proceeded to consider the merit of the motion on notice, reached certain decisions, on the basis of which it dismissed the application.
Ground 1 of this appeal complained that the trial court erred in law to have stated that the issue is that the defendants did accept the fact that they were served with the originating processes, but their grouse is that the processes were not served on them personally and that this error occasioned a miscarriage of justice. The ground did not complain about the decisions of the trial court refusing the application.
It is expressly stated in the appellants brief of argument that issue No. 1 derives from a ground I of this appeal. But the complain or question raised in the issue is different from the complain in the ground from which it is derived. From the express words of the issue, it is glaring that it questions if the trial court was right in refusing to set aside the non personal service upon the appellants of some of the originating court processes as required by law.
An issue raised from a ground of appeal for the determination of the appeal must be consistent with the ground from which it is raised. If it is not consistent with the ground, then it is not derived from that ground. As this court held in NGIGE & ANOR V. INEC & ORS (unreported judgment in Appeal No CA/E/EPT/02/2014 delivered on 15-4-2014) that “an issue can only be regarded as deriving from a ground of appeal if the complain or question if raises is the same with that in the ground from which it purports to be derived.” In AYINDE & ORS V. ADIGUN (1993) 11 SCNJ, the Supreme Court held that issues for determination should not merely be consistent with the ground it derives from, but should fall within the scope and confines of the ground of appeal relied upon.
Learned Counsel for the appellant was therefore wrong for stating that the said issue No. I was derived from the ground 1 of this appeal.
The issue as couched is not derived from any of the two grounds of this appeal. The ground 2 of this appeal complains “that the trial judge erred in law by not evaluating the affidavit evidence before him before coming to his decision.”

It is trite law that an issue for determination in an appeal must derive from at least one ground of the appeal and an issue not derived from any ground of the appeal is incompetent. See MAGIT V. UNIVERSITY OF AGRICULTURE MAKURDI & ORS (2005) 19 NWLR (PT.959) 211, AYINDE V. ADIGUN (SUPRA), MOMODU & ORS It V. MOMOH & ANOR (1991) 2 SC 1 AND THE UNREPORTED DECISION OF THIS COURT IN NGIGE V. INEC & ORS (SUPRA).

The arguments of Learned Counsel for the appellants under issue No.1 equally become incompetent because there is no longer any competent issue on the basis of which the arguments can be validly made or considered. See MAGIT V. UNIVERSITY OF AGRICULTURE (SUPRA)
Furthermore, the arguments just like the issue under which they were made is contrary to the ground of appeal they purport to argue or address. Non of the two grounds of this appeal support the said arguments. A party to an appeal cannot validly argue outside the grounds of the appeal. So both the issues and the arguments in an appeal must be consistent with and be within the confines of the grounds of that appeal.
In any case issue No I assumes, and the arguments thereunder proceed on the assumption that the trial court held or acknowledged that the appellants were not served personally. It is obvious from the express words of the ruling of the trial court that this assumption is wrong. There is nothing in the ruling of the trial court suggesting that it acknowledged or held that the appellants were not served personally. As I had earlier said, the trial court after directing itself that the grouse of the appellants is that they were not served personally and after considering the preliminary issue of failure by the appellants to file a memorandum of conditional of appearance, proceeded to determine the merit of the application before it. The decision determining the merit of the application reads thus- “I have perused the 2 affidavits of service dated 16/3/09 signed by N.A. Ifezue, bailiff stating that on 13/3/09 (sic) and 13/3/09 he served the writ of summons and statement of claim on Virginia Okolo and Reuben Okolo, after being pointed out by the plaintiff. That is the 1st and 2nd defendants. I take the two affidavits of service as the prima facie proof that 1st and 2nd defendants were served on the dates stated therein. There is no mention on the affidavits of service that survey plans of the land in dispute were served. I agree with the learned Senior Advocate for the defendant/applicants that the defendants/applicants are entitled to 42 days after service to file their statement of defence. The computation for the 42 days would begin a day after 13/3/09 being the date on which the affidavits of service show defendants were served. It is clear that from 14/3/09 to 1/6/09 when the pre-trial conference was fixed is well over 42 days. About the filing of Forms 17 and Form 18 according to order 25 High court Rules 2006, the essence is that the parties would comply before the 1/6/09 fixed for pre trial conference which was adjourned on 4/5/09, close to a month in advance. It is at the pre-trial conference on 1/6/09 that Forms 17 and 18 are required, not before. I have determined that the 1st and 2nd defendants/applicants were properly served on 13/3/09. Notwithstanding that the essence of service of process is to bring the suit to the notice of the parties. The parties having appeared even in protest the essential part of service has been fulfilled. There is the reminder part as to service conforming with the law and I repeat that the affidavits of service show that service on 1st and 2nd defendants are good and proper at law. The issues raised in the protest of the defendants/applicants having been resolved albeit against them, they are expected to file a proper memorandum of appearance along with their statement of defence. The motion fails and is dismissed. This matter is adjourned to 1/6/09 for pre-trial conference.”
It is glaring from this ruling that the trial court relied on the two affidavits of service sworn to by the bailiff of the trial court, to hold that the appellants were properly served with the originating processes, except the survey plan, on 13-3-2009. The trial court did not only decide that the service was proper, it directed itself specifically to “the remainder part as to service conforming with the law” and then held “I repeat that the affidavits of service show that service on 1st and 2nd defendants are good and proper at law.”
The two affidavits of service relied on in the ruling state expressly that each appellant was served personally. It is therefore obvious that when the trial court held that “the two affidavits of service show that service on 1st and 2nd defendants are good and proper at law” it was saying that they were each served personally. I therefore fail to see the basis for the assumption that the trial court acknowledged that the service was not personal.
The appellants had at the trial court argued that they were served the originating processes through a third party and that they were not served personally. The respondent herein at the trial court argued replicando that the two affidavits of service show they were served personally. Following the arguments of both sides the trial court rendered the ruling reproduced above in which it glaringly believed and relied on the two affidavits of service.
An appeal should attack what was actually and clearly decided and not what an appellant thinks or assumes was decided. The trial court refused to set aside the service of the originating processes on the appellants because the affidavits of service show that the service on each of them was good and proper in law. It is obvious that issue No. 1 and the arguments thereunder were based on a suggestio falsi or a false assumption and therefore were bound to fail ab initio.
Let me now consider the remaining issue of whether in the circumstances of this case the Court below was right in deciding to continue with the proceedings even when the appellants raised a preliminary objection to that effect, thus questioning the court’s jurisdiction.
Learned Counsel for the appellant stated in the appellant’s brief of argument that this issue covers ground 2 of this appeal. A calm and careful reading of ground 2 of this appeal and the appellant’s second issue for determination show that they are not consistent. The question or complain in issue No 2 is glaringly different from the complain in ground 2 of this appeal.
The complain in ground 2 of this appeal is that-
“The learned trial judge erred in law by not evaluating the affidavit evidence before him before coming to his decision.
PARTICULARS OF ERROR
(a) The defendants/appellants in the motion in contention filed and relied on affidavit evidence of Reuben Okolo; Virginia Okolo and Helen Uchenna Okolo and Reply to counter affidavit by Reuben Okolo in their application to set aside the purported service
(b) The Bailiff did not challenge the “facts” of non personal service in any affidavit for this motion.
(c) No oral evidence was taken to resolve the dixit of the bailiff in his “affidavit of service” on 13/3/2009 in the Court’s file and the contrasting affidavits of the applicants in support of their motion.
(d) No finding was made whether the 1st and 2nd defendants/appellants were in Enugwu-Agidi at all on the material date of 13/3/2009.”
It is obvious that while the ground complains that the trial court did not evaluate the affidavit evidence before it in arriving at its decision, issue No 2 purportedly derived therefrom questions whether the trial court was right continuing the proceedings in the suit inspite of the appellants preliminary objection that the service of the originating processes on them was not as required by law, as it was not personal, thereby questioning the jurisdiction of the trial court.
Since the issue couched is clearly different from the ground 2 of this appeal that it purports to derive, it is wrong for the Learned Counsel for the appellant to have submitted that the said issue covers the ground 2 of this appeal. It is obvious that it is not derived from ground 2 or the first ground of this appeal. It is not derived from any of the grounds of this appeal. It is trite law that all issues for determination in an appeal must derive from one or more of the grounds of the appeal. An issue that is not derived from any of the grounds of an appeal is incompetent and is liable to be struck out. See MAGIT V. UNIVERSITY OF AGRICULTURE (supra)
Equally the arguments made on the basis of an issue held to be incompetent also becomes incompetent.
For the above reasons, issue No 2 as well as the arguments made thereunder are hereby struck out.
As it is, no issues were distilled from the two grounds of this appeal. The grounds of this appeal were abandoned by the appellants who rather raised and argued in their brief of argument issues different from the ones contained in the grounds of this appeal.
In the light of the foregoing, I hold that the appeal lacks merit and is accordingly dismissed. The ruling of the Anambra State High Court at Awka delivered on 25-5-2009 in suit No A/285/08 is hereby affirmed.
The appellant shall pay cost of N100,000 to the respondent.