DIBANG v. BOKI L.G. COUNCIL (2021)

DIBANG v. BOKI L.G. COUNCIL

(2021)LCN/15152(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/161/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ELDER JOLLY DIBANG APPELANT(S)

And

BOKI LOCAL GOVERNMENT COUNCIL RESPONDENT(S)

RATIO

WHETHER ISSUES FOR DETERMINATION FORMULATED IN A BRIEF MUST BE BASED ON THE GROUNDS OF APPEAL FILED

It is also the law that issues for determination formulated in a brief must be based on the grounds of appeal filed. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced. See Ibator v. Barakuro (2007) 9 NWLR (pt. 1040) 475. Any issue formulated for determination by the Respondent in an appeal must relate to the grounds of appeal filed by the Appellant unless he has cross appealed or filed a Respondent’s notice. See Momodu v. Momoh (1991)1 NWLR (pt.169)608 and Ossai v. Wakwah (2006) 4 NWLR (pt.969) 208. PER JAMES SHEHU ABIRIYI, J.C.A.

ATTITUDE OF THE COURT TO PROLIFERATION OF ISSUES

Where more than one issue is formulated out of a ground of appeal, the issues are incompetent. See Okwuagbala & Ors. v. Ikwueme & Ors. (2010) LPELR – 2538SC. PER JAMES SHEHU ABIRIYI, J.C.A.

WHETHER ARGUMENTS OR SUBMISSIONS ON INCOMPETENT ISSUES AND/OR GROUNDS OF APPEAL CAN BE LUMPED TOGETHER WITH THOSE OF COMPETENT GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION.

Arguments or submissions on incompetent issues and/or grounds of appeal cannot be lumped together with those of competent grounds of appeal and issues for determination. If this is done it will not be the business of the Court to sift the grains from the chaff. Such an exercise may involve the Court descending into the arena of dispute. See Ikpeazu v. Otti & Ors. (2016) LPELR – 40055 SC p.52. PER JAMES SHEHU ABIRIYI, J.C.A.

IMPORTANCE OF THE SERVICE OF AN ORIGINATING PROCESS

Service of an originating process is fundamental and goes to the root of the competence of the Court to entertain the action. It is at the heart of a party’s right to fair hearing. If an originating process is not served on a party, the entire proceedings are nullity. PER JAMES SHEHU ABIRIYI, J.C.A.

IMPORTANCE OF AN AFFIDAVIT OF SERVICE WHERE THERE IS A CHALLENGE TO THE SERVICE OF AN ORIGINATING PROCESS ; HOW TO CHALLENGE SERVICE OF AN ORIGINATING PROCESS

Where there is a challenge to the service of originating process, the affidavit of service is prima facie evidence of such service. A person challenging the service of an originating process on him must depose to a counter affidavit denying the service. The counter affidavit must contain credible facts to rebut the facts in the affidavit of service. The person who should provide the evidence is the person who received the service. See Mgbenwelu v. Olumba (2016) LPELR – 42811SC and Ahmed v. Ahmed & Ors. (2013) LPELR – 21143SC. PER JAMES SHEHU ABIRIYI, J.C.A.

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling delivered on 13th January, 2019 in the High Court of Cross River State holden at Akamkpa.

In the High Court (the Court below), the Respondent was the Applicant. The Appellant was the Respondent.

The Appellant had earlier taken out a writ under the Undefended List against the Respondent. The Appellant obtained judgment as the Respondent did not defend the suit. The Court below made an order nisi in the process of enforcing the judgment. Before the date fixed for the hearing of parties on the Garnishee proceedings the Respondent brought several applications before the Court below. The Respondent abandoned some of the motions but argued the one filed on 20th November, 2012 which was for an order setting aside the judgment in HM/MISC/14/2017 and the order nisi in HM/MISC/14/2017.

The application was brought upon the following grounds:
i. Non-service of the Court processes and the order placing the suit on the undefended list on the Judgment-Debtor/Applicant render the suit incompetent.
ii. Fraudulent collusion of the Bailiff of this Court

Mr. Moses Aji who filed a false Affidavit of service to the effect that the Applicant has been served with a copy of the writ of summon (sic) and Court Order on 16/12/2016.
iii. The suit is incompetent under the Undefended List procedure as the endorsement contained a claim for 10% interest on the principal sum.
iv. Non-service of the writ of summons and the order placing the suit on the Undefended List on the applicant amount to a violation of the rule of natural justice: audi alteram partem.

The Appellant opposed the application. To this end, he filed a counter affidavit on 16th February, 2018.

The Respondent filed a further and better affidavit on 20th March, 2018.

The Court below considered the affidavit evidence and addresses of learned counsel and set aside the judgment in HM/107/2016 and the order nisi.

The Appellant has appealed against the ruling of the Court below on four grounds of appeal. From the four grounds of appeal, the Appellant presented the following three issues for determination in an appellant’s brief filed on 29th June, 2020:
1. Whether the judgment of Edem, J. (as he then was) in Suit No.

HM/107/2017 (sic) dated 16th day of March, 2017 was a nullity and liable to be set aside as held by the lower Court (GROUND 2).
2. Whether the learned trial Judge had jurisdiction to sit on appeal over the judgment of his learned brother of co-ordinate jurisdiction and to review his brother’s judgment and then set same aside (GROUNDS 1 & 3).
3. Whether the learned trial Judge was right when he sits (sic) on appeal over his judgment by reviewing it and then set it aside when the judgment contained in his Order Nisi dated the 18th July, 2017 was not within the circumstances contemplated upon by the Supreme Court in Igwe v. Kalu (2002) 14 NWLR (Part 787) Page 435 (at pages 453-454, paras G-B, per Ogwuegbu, J.S.C.)” (GROUND 4).

The Respondent’s brief was filed on 5th August, 2020. In the brief, the Respondent submitted the following five issues for determination:
Issue No. 1
Whether the failure to serve the originating processes on the Respondent rendered the judgment of Edem, J. (as he then was) in Suit No. HM/107/2017 (sic) dated 16th day of March, 2017 a nullity and liable to be set aside as held by the lower Court.

Issue No. 2
Whether the suit HM/107/2016 which was not for a liquidated sum was competent under the Undefended List procedure, when there was an endorsement of a claim of 10% interest on the principal sum which was not previously agreed upon by the parties.
Issue No. 3
Whether the Respondent proved the allegations of fraud, non-service and lack of jurisdiction before the lower Court as to be entitled to the judgment in HM/MISC.14/2017.
Issue No. 4
Whether the learned trial Judge’s order setting aside the judgment of a Judge (of co-ordinate jurisdiction) when it was proved that the said judgment was obtained by fraud amounts to sitting on appeal over the judgment of his learned brother Judge.
Issue No. 5
Whether the lower Court has jurisdiction to set aside its own judgment or that of a brother Judge obtained in default of appearance and defence under the undefended list procedure, when it is proved that the said judgment were (sic) tainted by fraud, non-service or lack of jurisdiction.

The Appellant filed an Appellant’s Reply Brief of Argument on 18th August, 2020.

Arguing issue 1, learned counsel for the Appellant submitted that a judgment is said to be a nullity when the conditions set out in Madukolu v. Nkemdilim (1962) 2 SCNLR 341 are absent. That the grouse of the Respondent in its application in the Court below was that the condition precedent to the exercise of jurisdiction was not fulfilled in view of the fact that there was no service of originating process on her. Service of process on the Defendant, it was submitted, is a condition precedent and a constitutional requirement for fair hearing and non-service of process offends the provision of Section 36(1) of the Constitution. The Court was referred to Emeka v. Okoroafor (2017) 11 NWLR (pt. 1577) 410 at 460.

It is on record, it was argued, that the Respondent was served with a copy of the writ of summons and a copy of the Court’s order placing the suit under the Undefended List through the Respondent’s Secretary at the headquarters of the Local Government on 16th December, 2016 at 12pm by the Chief Bailiff of the Court below. That affidavit of service of these processes sworn to by the Bailiff who effected the service was even exhibited to the motion of the Respondent

seeking to set aside the judgment of the Court below in Suit No. HM/107/2016. Inspite of the foregoing, the Respondent, it was pointed out, still insisted that she was not served with the originating processes and that failure to be served rendered the judgment a nullity.

It was submitted that service of Court process on a party by the Court Bailiff who effected the service on the party is enough proof of service of the processes. The Court was referred to Regt. Trustees P.C.N. v. Etim (2017) 13 FWLR (pt. 1581) 1 at 30; Okesuji v. Lawal (1991) 1 NWLR (pt. 170) 661 at 678 and Order 12 Rule 13(2) of the Cross River State High Court (Civil Procedure) Rules 2008.

The Court below, it was contended, ignored the proof of service and the appearance of counsel for the Respondent as shown in the judgment. On the 26th March, 2017 when judgment was delivered, Respondent was represented by Barrister A. Ekput and it is not alleged by the Respondent that Barrister A. Ekput who appeared for the Respondent had no authority to do so.

On the allegation that the Chief Bailiff fraudulently deposed to a false affidavit of service, it was submitted, that this was an

allegation of crime and it must be proved beyond reasonable doubt. The Court was referred to Section 135(1) of the Evidence Act, 2011 and several decided cases of the Supreme Court and this Court.

The Respondent’s allegation against the Bailiff was not proved as required by law and he was not even invited by the Court below to attend Court and give oral evidence on the service and for the Respondent to cross examine him.

It was wrong for the Court below to hold that there was no service on the Respondent when there was evidence of service of the processes on the Respondent, it was submitted.

It is the law, it was submitted, that where a party alleges non-service by a Court Bailiff, he must depose to an affidavit denying such service a copy of which must be served on the Bailiff who deposed to the affidavit of service for his comment or counter affidavit.

In this case, the Respondent, it was argued, did not depose to any affidavit through her secretary who was served with the processes neither was a copy of the affidavit by the said secretary served on the bailiff for his comment or counter affidavit as required by law. The Court was

referred to Ahmed v. Ahmed (2013) 13 NWLR (pt. 1377) 274 at 337 and Mgbenwelu v. Olumba (2017) 5 NWLR (pt. 1558) 169 at 201.

It was submitted that there was no evidence before the Court below that the secretary who allegedly travelled to Calabar for a political meeting of the Peoples Democratic Party on 16th December, 2016 was not the person served with the writ of summons and the order of Court placing the writ under the Undefended List.

Learned counsel for the Appellant contended that the Respondent in her further and better affidavit in paragraphs 8-10 impugned the integrity of the Judge who delivered the judgment sought to be set aside by the Court below and this is sad. There is a procedure, it was submitted, for challenging the correctness of the record of proceedings.

Counsel for the Respondent, it was submitted, should have availed himself of such procedure. This he failed to do. It was submitted that the record of proceedings of a Court are presumed correct until the contrary is proved. The Court was referred to Section 147 of the Evidence Act, 2011 and several decisions of this Court and the Supreme Court.

On issue 2, it was submitted that for a Court to possess the power to set aside its decision or that of another Court of co-ordinate jurisdiction, it must be shown that the decision or judgment sought to be set aside is a nullity. The Court was referred to Odofin v. Olabanji (1996) 3 NWLR (pt. 435) 126 at 133 and Ebe v. Ebe (2004) 3 NWLR (pt. 860) 215 at 243.

It was submitted that since the judgment in Suit No. HM/107/2016 was not a nullity capable of being set aside by the lower Court Onyebueke, J; it was wrong for the Court below to have reviewed the said judgment and set it aside. The Court was referred to Fapa Co. Ltd v. O. W. C. Ltd (2017) 12 NWLR (pt. 1579) 169. It was submitted that the Court below lacked the jurisdiction to overturn the decision of another Judge even if he felt strongly that the decision was wrong.

It was submitted that the circumstances under which a Court of coordinate jurisdiction can set aside a decision of a coordinate Court or its own decision were set down in Igwe v. Kalu (2002)14 NWLR (pt. 787) 435 at 453-454.

The Court, was urged to declare the action of the lower Court null and void as it lacked the jurisdiction to review the decision of the same Court.

On issue 3, learned counsel for the Appellant submitted that the Court below had no jurisdiction to compare documents in her file to discover whether or not there were contradictions in the documents before him as he became functus officio the moment the order nisi was made. It is not in the record of the Court, it was contended that the Court below invited the Chief Bailiff who effected service on the Respondent to appear and clarify the issue raised by the Respondent. That it is also not on record that the Bailiff was served with any affidavit of the Respondent denying service before the pronouncement of the Court on the issue. This, it was submitted, was an error which this Court should correct.

It was contended that the Court below found as a fact that there was no problem with service of the order where it stated at page 157 lines 22-23 that there was no “problem in respect of the service of the order.” It was therefore wrong to set aside the order nisi which was not a nullity.

Learned counsel for the Respondent argued Respondent’s issues 1, 2 and 3 together. I will not summarize most of the arguments for reasons that will emerge later in the judgment. Arguing the three issues, learned counsel for the Respondent submitted that the proceedings and judgment of Edem J in Suit No. HM/107/2016 delivered on 16/3/2017 were a nullity and liable to be set aside for failure to serve the Respondent with originating processes as required by law. It was contended that the affidavit of service filed by the bailiff was false and fabricated.

It was contended at great length that the action was wrongly brought under the Undefended List procedure. That in any case the Respondent was not indebted to the Appellant. It was also submitted that the Appellant had no locus standi to institute the action.

Issues 4 and 5 were also argued together. Respondent’s counsel pointed that he had argued earlier that the Respondent was represented by two different lawyers on the same day, Barrister A. Ekput and Barrister E. A. Abia who are unknown to the Respondent.

It was submitted that the Respondent had successfully proved fraudulent collusion, non-service and lack of jurisdiction which rendered the judgment and order nisi obtained by the Appellant null and void and liable to be set aside by the Court of coordinate jurisdiction.

It was submitted that Onyebueke J did not sit on appeal against the decision of a brother Judge.

Learned counsel for the Respondent submitted that the decision of Onyebueke J. was not in grave error and did not result in any miscarriage of justice.

It was contended that the Respondent did not attack the integrity of the Judge who delivered the judgment under the Undefended List. That the averments in the affidavit in support were statements of fact.

It was submitted that the Court below did not act ultra vires when it set aside the judgment. That the Appellant has not suffered any miscarriage of justice from the decision of the Court below as this Court has power to order for a re-trial of the matter before another Judge.

On the order nisi, it was submitted that the Court below did not need to invite the Bailiff to clarify issues from the documentary evidence. That the Court below was not functus officio after it had made the order nisi.

In his reply brief, learned counsel for the Appellant pointed out that issue 2 presented by the Respondent was not from any of the grounds of appeal and should be struck out.

It was also pointed out that the offending issue is argued together with issues 1 and 3 in the Respondent’s brief. It was submitted that the issue having been lumped and argued together with other issues by the Respondent, argument on it cannot be excised. Therefore, arguments on the three issues are bound to be discountenanced. The Court was referred to Ikpeazu v. Otti (2016)8 NWLR (pt.1513)38 at 95; Korede v. Adedokun (2001)15 NWLR (pt.736) 483 at 800-501 and Honika Sawmill (Nigeria) Limited v. Mary Okojie Hoff (1994) 2 NWLR (pt.320)252.

The Court was also referred to the argument of Respondent’s counsel that the Appellant had shown that the judgment was a nullity under the Undefended List procedure and given in the absence of jurisdiction. This argument, it was submitted was based on the incompetent issue in which it was argued that the claim for interest of 10% made the action contentious and so could not be heard under the Undefended List procedure. It was submitted that the issue of competency of the action under the Undefended List was not based on any ground of appeal.

It was submitted that these issues having been combined, the Court cannot excise arguments on competent issues from arguments on incompetent issues lumped and argued together.

The Court was urged to discountenance the Respondent’s brief of argument as it is incompetent having been made from the combination of competent and incompetent issues.

Learned counsel for the Appellant pointed out that the Respondent formulated five issues from four grounds of appeal. The Court was urged to discountenance the issues formulated by the Respondent and arguments on them as they are incompetent. The Court was referred to Padawa v. Jatau (2003) 5 NWLR (pt.813) 247 at 263.

Apart from this, the Respondent it was pointed out, did not tie issues to any grounds of appeal. The issues, it was submitted, are therefore incompetent and liable to be struck out.

The Respondent did not as learned counsel for the Appellant rightly point out tie any of the issues formulated by him to the grounds of appeal. The practice is for parties in an appeal to tie issues to the grounds of appeal from which they are formulated.

Where more than one issue is formulated out of a ground of appeal, the issues are incompetent. See Okwuagbala & Ors. v. Ikwueme & Ors. (2010) LPELR – 2538SC.

40055 SC p.52. Although, the Respondent did not tie any of the issues formulated by him to the grounds of appeal, it is not difficult to see that issue 2 is not based on any of the four grounds of appeal. Issue 2 should therefore be discountenanced. But Issue 2 was argued together with issues 1 and 3. Having argued an incompetent issue together with competent issues, it is not the business of the Court to embark on an exercise of trying to separate the arguments on the incompetent issue from those on the competent issues. It is on this basis that I agree with learned counsel for the Appellant that arguments of Respondent’s counsel on issues 1, 2 and 3 should be discountenanced. Unfortunately, as learned counsel for the Appellant rightly pointed out, arguments on the incompetent and competent issues have filtered into arguments on issues 4 and 5 which were also argued together. For example, see arguments on issue of the Court’s jurisdiction to entertain the matter under the Undefended List procedure when there was a claim for interest. The Court will not also have to embark on an exercise of trying to decipher which issues have filtered into issues 4

and 5 from the competent and incompetent issues argued in issues 1, 2 and 3. In the circumstances the entire brief of the Respondent must be discountenanced.

The only issue for determination in this appeal is whether the Court below rightly set aside the judgment in Suit No. HM/107/2016 and the Order nisi in Suit No. HM/MISC/2017.

The Respondent challenged the affidavit of service which was sworn to by the Chief Bailiff. Service of an originating process is fundamental and goes to the root of the competence of the Court to entertain the action. It is at the heart of a party’s right to fair hearing. If an originating process is not served on a party, the entire proceedings are nullity.

Where there is a challenge to the service of originating process, the affidavit of service is prima facie evidence of such service.
A person challenging the service of an originating process on him must depose to a counter affidavit denying the service. The counter affidavit must contain credible facts to rebut the facts in the affidavit of service. The person who should provide the evidence is the person who received the service. See Mgbenwelu v. Olumba

(2016) LPELR – 42811SC and Ahmed v. Ahmed & Ors. (2013) LPELR – 21143SC. In the instant case, the secretary to the Respondent who was served with the originating process did not swear to a counter affidavit showing that he was not served the originating process. Since the secretary who was served with the originating process did not depose to a counter affidavit rebutting the facts in the affidavit of service, the presumption that the Respondent was served with the originating process has not been rebutted. The deposition in paragraph 4(ii) of the affidavit in support of the motion that the secretary told the deponent that he was away on the 16th December, 2016 and did not meet the Bailiff is not the type of evidence that can rebut the presumption that he was served with the originating process.

There was therefore no basis on which the Court below granted the application of the Respondent for the judgment to be set aside due to want of service of the originating process on the Respondent.

There was also no basis for setting aside the order nisi made by the Court below.

At page 158 of the record, the Court below concluded the ruling in the following terms:
“Therefore it is my humble view that it will be in the interest of justice to set aside the judgment in HM/107/2016 and I so do. Same is applicable to the Order Nisi.”

There is no evidence that the order nisi was set aside in the interest of justice according to law. As the judgment was not set aside in the interest of justice according to law as shown above, so also was the order nisi. There was no basis for setting aside the order nisi.

The only issue formulated by the Court is resolved in favour of the Appellant and against the Respondent.
The appeal is allowed.

The orders of the Court below setting aside the judgment in HM/107/2016 and the order nisi made on 27th September, 2017 by Onyebueke J., in Suit No. HM/MISC/14/2017 are hereby set aside. Parties to bear their costs of the appeal.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother J. S. Abiriyi, JCA. I agree with the leading judgment that the presumption that the Respondent was served with the originating process as contained in the affidavit of service was

not rebutted. That there was therefore no basis for the Court below to grant the application of the Respondent for the judgment and order nisi to be set aside.

I also allow the appeal and abide with the consequential orders and the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, James S. Abiriyi, JCA.

I agree entirely with the reasoning and conclusion reached in allowing the appeal.
I also allow the appeal.

Appearances:

Jerry Akpan, Esq. For Appellant(s)

Tah Offre, Esq. For Respondent(s)