Fundamental Nature Of Service Of Originating Process And Procedure For Challenging Such Service

By Legalpedia

ELDER JOLLY DIBANG V. BOKI LOCAL GOVERNMENT COUNCIL

         suit no: CA/C/161/2020

Legalpedia Electronic Citation: (2021) Legalpedia (CA) 97114

 Areas Of Law:  

APPEAL, COURT, LEGAL PRACTITIONER, PRACTICE AND
PROCEDURE

Summary Of Facts:

The Appellant had earlier taken out a writ under the undefended List before the High Court of Cross River State sitting at Akamkpa against the Respondent.

The Appellant obtained judgment as the Respondent did not defend the suit. The trial Court 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, though he abandoned some of the motions but argued the one which was for an order setting aside the judgment in HM/107/2016 and the order nisi in HM/MISC/14/2017.

The Appellant filed a counter affidavit in opposition the application. The Court after consideration of the affidavit evidence and addresses of learned counsel; set aside the judgment and the order nisi.

The Appellant has appealed against the ruling of the Lower Court vide his Notice of Appeal containing four Grounds of Appeal.

HELD:

Appeal Allowed

ISSUES FOR DETERMINATION

Ø 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.

RATIONES
FORMULATION OF ISSUE FOR DETERMINATION – BASIS FOR THE FORMULATION OF ISSUE FOR DETERMINATION

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.

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. Momodu (1991)1 NWLR (pt.169)608 and Ossai v. Wakwah (2006)4 NWLR (pt.969) 208. Where more than one issue are formulated out of a ground of appeal, the issues are incompetent. See Okwuagbala & Ors. v. Ikwueme & Ors. (2010) LPELR – 2538SC. –PER J. S. ABIRIYI, J.C.A

APPEAL, PRACTICE AND PROCEDURE, LEGAL PRACTITIONER ISSUES FOR  DETERMINATION – DUTY OF COUNSEL NOT TO LUMP ARGUMENTS ON INCOMPETENT ISSUES OR GROUND OF APPEAL WITH COMPETENT ISSUESAND/OR GROUNDS OF APPEAL

“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 in descending into the arena of dispute. See Ikpeazu v. Otti & Ors. (2016) LPELR – 40055SC p.52. – PER J. S. ABIRIYI, J.C.A

COURT, PRACTICE AND PROCEDURE SERVICE OF COURT’S PROCESSES –FUNDAMENTAL NATURE OF SERVICE OF ORIGINATING PROCESS AND PROCEDURE OF CHALLENGING SUCH SERVICE

“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 a 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. – PER J. S. ABIRIYI, J.C.A

Statutes Referred To:
Cross River State High Court (Civil Procedure) Rules 2008
Evidence Act, 2011