Anne-marie Egbagbe V. Arch. Bakau Ishaku & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

The plaintiff who is now the 1st respondent in this court by a writ of summons dated 9/10/97, instituted an action at the Kaduna State High Court of Justice, Kaduna, against the 1st and 2nd defendants, the 1st defendant is now the appellant and the 1st respondent’s paragraph 23 of the statement of claim dated the 28th day of November, 1997, reads:

“23. WHEREOF, the plaintiff claims against the defendants jointly and severally as follows:

(1) A DECLARATION that the plaintiff is the legal and beneficial owner of the parcel of land situate and known as plot NO.2 Road one Marafa Housing Estate Kaduna, by virtue of the sublease of same to the plaintiff by the 2nd defendant.

(2) A DECLARATION that the 1st defendant’s action in entering into and carrying on construction of structure on the said parcel of land, without the consent and authority of the plaintiff, is illegal and constitute trespass.

(3) AN ORDER of perpetual injunction restraining the 1st defendant, either by herself, her servants, agents or privies, from further trespassing into or erecting any structure on the said land.

(4) AN ORDER of mandatory injunction directing the 1st defendant to demolish the structure already erected by her on the said land.

(5) AN ORDER awarding the plaintiff against the defendants general damages of =N=500,000.00.

(6) ANY other relief this court deems fit to grant in the circumstances.”

From the printed record only the 1st respondent as the plaintiff testified before the court and tendered three documents in support of his case, admitted in evidence marked Exhibits “1”, “2” and “3”. However none of the defendants defended the action. In the printed record, Mr. Anyira, the learned counsel for the 2nd respondent informed the court that the 2nd respondent has no defence and urged the court to enter judgment as it pleases on the evidence.

At the conclusion of hearing and address by counsel, the learned trial Judge delivered his judgment contained at pages 70 – 72 of the printed record and held inter alia as follows:

“It is settled law that where evidence given by a party to any proceedings is not challenged by the other party who had the opportunity to do so, it is always open to the court seized of the matter to act on such unchallenged evidence before it. See OLAFIMICHAN V. NOVALAY TECHNICAL LTD (1998) 4 NWLR (PT.547) 608 AT 621; IRIRI V. ERHURBOBARA (1991) 2 NWLR (PT.173) 252 at 262. As the plaintiff’s evidence is unchallenged credible and very reliable I find him entitled to the declaration and orders contained in paragraph 23 (1)- (4) of the statement of claim. However in relation to the claim for =N=500,000.00 damages. However no evidence was led in proof of the same. General damages are not proved by the mere mention of the word.

The plaintiff must show why the court should award him the amount claimed. As he had not done so in the instant case, I shall award only nominal damages which I assessed at =N=50,000.00 only against the 1st defendant.”

The facts of the case as contained in the printed record as it relates to the plaintiff/1st respondent, as the only witness in the case are as follows: The plaintiff/1st respondent by a letter Exhibit “1” was allocated plot 2, Road B, Marafa Estate, Kaduna by the 2nd respondent. He paid about =N=76,000.00 to the 2nd respondent and was issued a receipt in acknowledgement of the payment, exhibit “2”. In May, 1997, he visited the site, where he noticed that some development was in progress on the said site. From the enquiries carried out by the 1st respondent, he discovered that it was the appellant that was developing the piece of land. As a result the 1st respondent wrote the appellant but the appellant did not respond.

The 1st respondent then lodged a complaint contained in Exhibit “3” to KASUPDA the 2nd respondent which wrote two/three “Stop Notice” to the appellant but she did not stop the development. Eventually the appellant stopped the development after KASUPDA threatened to demolish the wall erected by the appellant, resulting in the institution of the action leading to this appeal.

The case of the appellant who did not participate at the trial as a result, no evidence was adduced in support of the case of the appellant. However, the appellant’s counsel in the appellant’s brief stated that the writ of summons issued on 9/10/97 was not personally served on the appellant. That the 1st respondent filed an application to serve the appellant by substituted means that is by pasting the court process at No.18, Isa Kaita Road, Kaduna alleged to be the appellant’s residence which was granted.

The appellant contended that the writ of summons and other court processes were not served on her as ordered or at all and thus not aware of the pendency of the matter and did not participate in all the proceedings up to the conclusion of hearing and judgment which was delivered against the appellant and the 2nd respondent on 27th day of July, 1999, as contained in the printed record. According to the appellant she only became aware of the matter when execution was levied against her on 13/9/99. As a result the appellant, applied to the lower court for the said judgment to be set aside but the application was refused and dismissed by the learned trial Judge in his ruling delivered on 20/7/2001.

Unhappy with the judgment the appellant filed a motion on notice dated 14th day of September, 1999, and filed on 14th day of September, 1999 which reads:

“TAKE NOTICE that this Honourable Court shall be moved on the 22nd day of October 1999 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the applicant praying the Honourable Court for the following orders:

1. An order for stay of execution of the judgment of this Honourable Court in this suit.
2. An order for an extension of time within which applicant may apply to set aside the judgment of the Honourable Court in this suit.
3. An order setting aside the judgment of this Honourable Court in this suit.
4. An order setting aside the writ of attachment issued in this suit against the applicant.
5. SUCH further order or orders as this Honourable Court may deem fit to make in the circumstances.”

The motion was supported by a five paragraph affidavit deposed to by one Malik Ozi, of No. YY.4 Abuja Road, Kaduna, a Litigation Officer in the Law Firm of Messrs Igunbor, Sule & Company, counsel to the applicant. Paragraphs 3 and 4 of the said affidavit reads:

“3. That I have the authority of the applicant and of my employers to depose to this affidavit.

4. That the applicant informed me on Monday, 13th September, 1999 at about 3.00pm in our office of the following facts which I verily believe to be true and correct.

(a) That she is the 1st Judgment Debtor in this suit and applicant in this application.

(b) That she has never been served any court process issued in this suit or at the instance of the Judgment Creditor/Respondent.

(c) That her address has been No.18 Isa Kaita Road, Kaduna and has remained so till date.

(d) That the Judgment Creditor/Respondent knows her address very well and has been seeing her regularly in Kaduna without ever mentioning anything about this suit to her.

(e) That she neither knew nor heard anything about this suit until the 13th September, 1999 when Bailiffs and Policemen from this Honourable Court came to her office with a writ of attachment against her. A copy of the writ of attachment is hereto annexed and marked as Exhibit A.

(f) That herself and the Judgment Creditor had met several times to resolve the issue of land, subject matter of this suit, without the Judgment Creditor revealing to her anything about this suit.

(g) That the non-service of court processes in this suit on her by the Judgment Creditor until after judgment is meant to take undue advantage of her.

(h) That it is in the interest of justice to set aside the judgment and the writ of attachment issued pursuant thereto against her in this suit.

(i) That she has a good defence to this suit and it is in the interest of justice for it to be heard on the merits.

(j) That the Judgment Creditor would not be prejudiced by the grant of this application.”

A counter-affidavit of five paragraphs was filed on behalf of the 1st respondent/plaintiff deposed to by one Augustine Anga of A3, Ahmadu Bello Way, Kaduna, a Litigation Clerk in the Firm of Messrs Yohanna Madaki & Co, Solicitors to the 1st respondent/plaintiff. Paragraphs 2, 3 and 4 of the counter-affidavit are as follows:

“2. That I have the consent and authority of both my employers and the Judgment Creditor/Respondent to depose to this counter-affidavit.

3. That G.G. Bawa Esq, of counsel to the Judgment Creditor informed me in Chambers on the 27th of September, 1999 at about 12 noon and his information I verily believe to be true and correct as follows:

(a) That he had seen and read the Motion on Notice dated 14/9/99 filed by 1st Judgment Debtor/

Applicant with the supporting affidavit.

(b) That the depositions in paragraphs 4 (b), (e), (f), (g), (i) and 4 (j) and 5 of the affidavit in support are completely false.

(c) That this suit started before Honourable Justice H. Donli’s court, before being transferred to this court.

(d) That after several fruitless efforts to effect personal service of the writ of summons and all court processes on the 1st Judgment Debtor/Applicant, a motion exparte for leave to serve the 1st Judgment Debtor/Applicant by substituted means, to wit pasting at No.18 Isa Kaita Road, Kaduna, was filed moved and granted on 3/3/98.

(e) That the court also ordered on the said 3/3/98 that service by pasting at NO.18 Isa Kaita Road Kaduna, shall be proper service on the 1st Judgment Debtor/Applicant. A photocopy of the court’s order is hereto annexed and marked as Exhibit KC1.

(f) That the case was first mentioned before this court on the 18/12/98.

(g) That hearing commenced on the 1/6/99 proved of service by pasting at NO.18 Isa Kaita Road Kaduna, and a sworn affidavit of service filed by the bailiff of this court.

(h) That the Judgment Creditor/Respondent closed his case on the said 1/4/99 and the court adjourned the suit to 14/7/99 for defence or address.

(i) That the 1st Judgment Debtor/Applicant’s case was ordered closed on the 14/7/99 and he addressed the court thereafter, all upon proved of service of hearing notice against 14/7/99, on the 1st Judgment Debtor/Applicant and an affidavit of service filed by bailiff of the court.

(j) That judgment was delivered on 23/7/99.

(k) That the 1st Judgment Debtor/Applicant had always been aware of this suit coming up in court but decided to stay away.

(l) That the 1st Judgment Debtor/Applicant has not satisfied the legal requirements for the grant of any of the orders being sought.

4. That the Judgment Creditor/Respondent will be prejudiced by the grant of the application.”

In response to the counter-affidavit, the appellant filed a further and better affidavit of five paragraphs deposed to by the same deponent of the affidavit in support. Paragraphs 2, 3 and 4 of the further and better affidavit reads:

“2. That I am the deponent to the affidavit in support of the Applicant’s motion on notice dated 14/9/99 and I am conversant with the facts of this matter.

3. That S.I. Unoakhe Esq, of counsel informed me in Chambers on Thursday 28th October, 1999 of the following facts which I verily believe to be true:

(a) That he has seen and read the counter-affidavit of one Augustine Anga sworn to on 13/10/99 on this matter.

(b) That he has also gone through the record of proceedings of the Honourable Court in this matter.

(c) That the depositions in paragraphs 3 (b), (d), (e), (f), (h) and (j) of the counter-affidavit are true and correct.

(d) That the depositions in paragraphs 3 (b), (g) (i), (k), (I), 4 and 5 of the counter-affidavit are neither true nor correct.

(e) That after being briefed in this matter and upon application to the Registrar of this Honourable Court, the record of proceedings in this matter were made available to him.

(f) That even though the Honourable Court granted an order of substituted service on the Applicant by pasting and inspite of the various affidavits of service in the file, the Applicant was not served with court processes in this matter.

(g) That copies of the writ of summons, statement of claim and other court processes meant for service on the Applicant and which were purportedly served on the Applicant are still in the Honourable Court’s file on this matter.

4. That the Applicant on Thursday, 28th October, 1999 at about 3.00pm in our office at YY.4 Abuja Road, Kaduna informed me of the following facts which I verily believe to be true:

(a) That at all times of the day, there is always a guard at the gate of her office at 18 Isa Kaita Road, Kaduna.

(b) That had any court process been pasted on the gate or any part of the premises, she would have received same.

(c) That no court process relating to this suit was ever served on her or pasted on any part of the premises.

(d) That she became aware of the existence of this suit for the first time on 13/9/99 when Bailiffs and Policemen from the court came to her office for the purpose of executing the judgment of this Honourable Court.

(e) That she did not trespass into the Respondent’s property at plot 2 Road 1, Marafa Housing Estate, Kaduna as claimed by the respondent or at all.

(f) That she purchased the plot No.2 Road 1, Marafa Housing Estate, Kaduna through one Alhaji Nurudeen Shehu Giwa, an Architect of No.13B Bayajidda Road, Kaduna sometime in 1997 before she commenced development of the plot.

(g) That the respondent had admitted to her that he commissioned the said Alhaji Nurudeen Giwa being his colleague, as his agent for sale of the plot.

(h) That Alhaji Nurudeen Shehu Giwa received the consideration of =N=450,000 from her and put her in possession of the plot.

(i) That the respondent filed this matter and deliberately and discreetly hid the fact of its existence from her in order to obtain an undue advantage over her.”

The motion was argued by the counsel to the parties and ruling delivered by the learned trial Judge on 20/1/2000, refusing and dismissing the appellant’s application. The learned trial Judge in his ruling contained at pages 91 and 95 after calling evidence to resolve the conflict in the affidavit and counter-affidavit at page 95 of the printed record, held inter alia as follows:

“It does not appear to me that there is any doubt as to whether or not the applicant was served with the writ of summons and other processes of the court. The case of WIMPEY NIGERIA LTD & ANOR. V. ALHAJI BALOGUN (Supra) is therefore in applicable in the circumstances of this case. The witness said that when they went to execute the judgment, the applicant did not say she was unaware of the case.

In the absence of any evidence by the applicant and since the evidence of the bailiff to the effect that the applicant was served has not been successfully challenged and is credible. I accept it as establishing the fact that the applicant was served with the writ and processes of this court by pasting as ordered by the court.

I am therefore not persuaded to set aside the judgment of this court delivered on the 23rd of July, 1999. I accordingly refuse to do so and hereby dismissed the application.”

Dissatisfied with the ruling, the appellant has now appealed to this Court by her notice of appeal dated 5/9/2001 filed on 7/9/2001 contained at pages 50 – 52 of the printed record. The grounds of appeal and their particulars are as follows:

“GROUND OF APPEAL

(j) The learned trial Judge erred in law and therefore occasioned a miscarriage of justice when he refused to set aside his judgment which was a nullity.

PARTICULARS

(a) There was overwhelming evidence that the Writ of Summons was not served on the Appellant.

(b) It is trite law that any proceedings, order or judgment obtained against a party who was not served amounts to a nullity and must be set aside.

(ii) The learned trial judge misdirected himself and therefore came to a wrong conclusion when he held that the Appellant had not satisfied him that She was not served with the court’s processes.

PARTICULARS

(a) The burden of establishing that the appellant was served with the processes rested on the Judgment Creditor/Respondent which burden the judgment creditor failed to discharge.

(b) The evidence of the bailiff called as witness by the Judgment Creditor clearly showed that the court’s processes were not served by him on the appellant as alleged as he could not explain the presence of the same processes allegedly served by him in the court’s file.

(c) There were sufficient facts disclosed by the appellant in her affidavits showing that she was not served.

(iii) The learned trial Judge in refusing the appellant’s application failed to exercise his discretion judicially and judiciously and therefore occasioned a miscarriage of justice.

PARTICULARS

(a) The learned trial Judge clearly went outside the bounds allowed him by law and considered extraneous –

matters to the application.

(b) The entire ruling of the learned trial Judge was based on speculative findings of facts.

(iv) The decision of the learned trial Judge is against the weight of evidence.”

Briefs of argument were filed and exchanged by the parties in accordance with the rules of practice and procedure of this court.

When the appeal came up for hearing on 21/2/06, all the counsel to the parties adopted their respective briefs and the reply brief but none of them advanced any oral argument.

The appellant formulated two issues at pages 2 – 3 of the appellant’s brief for determination in this appeal and they are:

“(i) Whether from the material evidence before the court, sufficient doubt was not cast upon the claim that the appellant was served with the writ of summons and other court processes to have warranted the lower court setting aside the proceedings and judgment founded on same.

(ii) Whether the appellant was not, from the entire circumstances of the matter, denied fair hearing by the lower court within the purview of the provisions of section 36 of the Constitution of the Federal Republic of Nigeria, 1999 and the rules of Natural Justice.”

The 1st respondent on the other hand formulated only one issue for determination in this appeal which reads:

Whether the trial court was wrong when it refused to set aside its judgment having regard to the totality of evidence before the trial court.”

Although the learned counsel for the 2nd respondent claimed to have adopted the two issues formulated by both the learned counsel for the appellant and the 1st respondent, only the 2nd issue formulated by the 1st respondent qualifies as an issue and it reads:

(ii) Whether the court below was wrong from the totality of material evidence before it, in not setting aside its judgment of 23/7/1999.”

Arguing issue number one in the appellant’s brief filed on 13/3/02, Igunbor, Esq, learned counsel for the appellant, submitted that the learned trial Judge was wrong in holding that there was no doubt that there was service of the writ of summons and other processes on the appellant, thus refused to set aside the proceedings and the judgment. He stated that the appellant’s application, the counter-affidavit of the 1st respondent and the appellant’s further and better affidavit are found at pages 41 – 49 of the record of proceedings.

It is submitted that the fact that the learned trial Judge has to seek for oral evidence to enable him resolve this issue of service was sufficient evidence of serious doubt on the claim that the appellant was served. According to the learned counsel for the appellant, the absence of an affidavit of service sworn to by the bailiff as required by Order 12 Rules 48 of the High Court (Civil Procedure) Rules further reinforced the appellant’s position that she was not served thereby strengthening the doubt upon the claim that she was served. Relying on the authority of MOBIL NIGERIA PLC V. PAM (2000) 5 NWLR (PT.657) 506 at 528 Paras B – D, he contended that an affidavit of service is the authentic means of proving service. He argued that the lack of such an affidavit in this case was fatal and the only option open to the learned trial Judge was to set aside the judgment. It is further submitted by the learned counsel for the appellant that the oral evidence proffered by the bailiff who purported to have served the appellant fell short of establishing the fact that the appellant was served with the writ of summons, statement of claim and other court processes. Reference was made to WIMPEY V. BALOGUN (1986) NWLR (PT.28) 324 at 337 by the learned counsel for the appellant who contended that there were serious doubts cast on the credibility of the bailiff and his evidence which would have warranted the lower court to set aside its judgment and urged this court to so hold.

Furthermore, learned counsel for the appellant on this issue finally submitted that it is trite law that where there is a failure to serve a writ of summons or notice of proceedings on a party who is entitled to be served, the proceedings therein will be a nullity and must be set aside placing reliance on the authority of B & B CONSTRUCTION LTD V. ALH. MUFTAHU BABA AHMED & 1 OR (1998) 9 NWLR (PT.566) 486; A.C.B LTD V. LOSADA (1995) 7 NWLR (PT.405) 26, 48, 49 and 53; LEEDO PRESIDENTIAL MOTEL LTD V. BANK OF THE NORTH LTD & 1 OR. (1998) 10 NWLR (PT.570) 353 at 380 – 381 Paras G – E and urged the court to set aside the proceedings and judgment of the lower court.

Replying to the argument of the learned counsel for the appellant, Bawa Esq, learned counsel for the 1st respondent in the 1st respondent’s brief dated the 5th day of April, 2002, filed on the 11th day of April, 2002, submitted that the appellant as applicant was legally required to satisfy the trial court of the need to have the judgment delivered on 23/7/99, set aside, as it is not an application that is granted merely for the asking. See JONASON TRIANGLE LIMITED V. C.M. PARTNERS (1999) 1 NWLR (PT.588) 555 at 572 – 573 Paras G – B. He contended that the burden of not having been served with the writ of summons, statement of claim and other processes is on the appellant as the onus of proof is on the person who asserts, citing section 135 of the Evidence Act Cap.112 Laws of the Federation of Nigeria, 1990, in support of his contention.

The learned counsel for the 1st respondent referred to pages 79 and 80 of the printed record where PW1, Shamsudeen Mohammed, the bailiff who effected the service of the writ of summons and the statement of claim by pasting at No.18, Isa Kaita Road, Kaduna, testified and tendered Exhibits “A”, “B”, “C” and “D1” on behalf of the 1st respondent. The witness, was cross examined by the learned counsel for the appellant. It is further submitted that PW1, in his evidence confirmed the service of the writ of summons and statement of claim as ordered by the trial court. He emphasized that the appellant did not satisfy the legal requirement for setting aside the judgment as the evidence of PW1 was not controverted and urged the court to so hold.

On whether the court below was wrong on the totality of the material evidence before it, in not setting aside the judgment of 23/7/99, T.O. Anyira Esq, for the 2nd respondent in the 2nd respondent’s brief dated and filed on 17/5/05, stated that although the 2nd respondent did not participate in the argument of the motion leading to the ruling on the application to set aside the judgment delivered on 23/7/99, he submitted that the issue of service of the court process is so fundamental in litigations generally and is a precondition to vesting jurisdiction in a court. That failure to notify any party is a fundamental omission which entitles the party not served and against whom any order is made in his absence to have the order set aside on the grounds that a condition precedent in the exercise of jurisdiction for the making of the order has not been fulfilled. See SCTTO- EMUNAKPOR V. UKANBE (1995) 112 S.C. 241 AND SOCIETE GENERALE BANK LTD V. ADEWUNMI (2003) 10 NWLR (PT.829) 526 at 546 Paragraphs C – E. He enumerated four conditions in his brief which the court should consider in an application to set aside its judgment.

The service of a writ or process on a defendant is one of the fundamental conditions precedent to the exercise of jurisdiction by court of law. A simple irregularity in the cause of proceedings that are competent and within the jurisdiction of a trial court must be distinguished from proceedings which are manifestly incompetent thereby affecting the jurisdiction of the court. An irregularity which renders the proceedings incurably defective and null and void may not be waived as acquiescence can not confer jurisdiction. See SKENCONSULT NIG LTD & ORS V. GODWIN UKEY (1982) 1 S.C. 6 at 26; MANAGEMENT ENTERPRISES LTD & ORS V. JONATHAN OTUSANYA (1987) 2 NWLR (Pt.55) 179; OBIMONORI V. KRINOSHO & ORS (1966) ALL NLR 250; MACFOY V. U.A.C. LTD (1961) ALL E.R. 1169 at 1172 and LEEDO PRESIDENTIAL MOTEL LTD V. BANK OF THE NORTH LTD (1998) 10 NWLR (Pt.570) 353 at 391. Service of process whether personal or substituted is to give notice to the other party on whom notice is to be effected so that he may be aware of and be able to resist if he may that which is sought against him. See HARUNA V. LADEINDE (1984) 4 NWLR (PT.67)941. The court can only be given the necessary jurisdiction where a person is served its process. See A.C.B. v. LOSADA NIG LTD (1995) 7 NWLR (Pt.405) 46.

As borne out by the record of proceedings at pages 36 – 38, the 1st respondent as plaintiff applied for substituted service on the appellant under order 12 rule 5 (a) and order 46 rule 1 of the High Court (Civil Procedure) Rules which the trial court granted. The only issue in contention in my view in this appeal, is whether the order of substituted service was effected. While the appellant claimed that she was not served by substitute means, the 1st respondent on the other hand is of the firm view that service was effected on the appellant by substituted means as ordered by the court.

When the bailiff has sworn to the proof of service, it is in law a compelling prima facie proof of service on the appellant of the writ of summons, statement of claim and other processes. See AJIDAHUN V. AJIDAHUN (2000) 4 NWLR (PT.654) 605 at 610 – 611.

It is the appellant that challenged the issue of service of the writ of summons, statement of claim and all other processes served on her by substituted means. The burden is therefore on the appellant to debunk the presumption of service. It is done by placing materials which enables the court to decide on the issue of service and require credible evidence on which it is obliged to rely on in arriving on such a decision. See WILLIAMS & ORS. V. HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) VOL. 13 NSCC 36. In the instant appeal, the 1st respondent through PW1 led evidence in proof of the service of the writ of summons, statement of claim and other court processes which the learned trial Judge accepted in refusing and dismissing the appellant’s application to set aside its judgment. It should be noted that the appellant’s counsel cross-examined the witness before ruling was delivered by the learned trial Judge but was unable to discredit the witness.

Order 12 rule 28 of the Kaduna State High Court Rules, 1987 reads:

“28. In all cases where service of any writ or document shall have been effected by a bailiff or other officer of court an affidavit of service sworn to by such bailiff or other officer shall on production, without proof of signature, be prima facie proof of service.”

It is trite that an appellate court will not interfere with an exercise of discretion by a lower court simply because if faced with a similar application, it would have exercised the discretion differently. See UNIVERSITY OF LAGOS V. OLANIYAN (NO.1) (1985) 1 NWLR (PT.1) 156 at 163 and WORBI & 6 ORS V. ASAMANYUAH & ORS 14 WACA 669 and 671. But it may do so in a special circumstances such as when the discretion was exercised on wrong or insufficient material or where no weight or insufficient weight was given relevant consideration or the tribunal acted under misconception of law or under misapprehension of facts and in all other case where it is in the interest of justice to interfere. See ENEKEBE V. ENEKEBE & ANOR (1964) ALL NLR 102, DEMUREN V. ASONI & ORS (1957) 1 ALL NLR 94 and MOBIL OIL NIG LTD V. FEDERAL BOARD OF INLAND REVENUE (1977) 3 S.C. 97 at 141.

From what has been stated above, this court can not accede to the request of the learned counsel for the appellant contained at page 5 of the appellant’s brief to hold that there were serious doubts on the credibility of the bailiff (PW1) and his evidence as the learned counsel for the appellant urged us to do.

Issue number one is therefore resolved in the negative against the appellant having regard to the finding of fact by the learned trial Judge, which cannot be interfered with by this Court as earlier stated in this judgment.

Although the objection raised by the learned counsel for the 1st respondent to the competence of issue number two formulated by the learned counsel for the appellant is itself incompetent in that it is not in compliance with Order 3 rule 15 of the Court of Appeal Rules, 2002, it is nevertheless obvious from the grounds of appeal that issue number two was not formulated from the appellant’s grounds of appeal contained at pages 49 – 50 of the printed record.

It is clear from the grounds of appeal and issue number two formulated, purportedly therefrom that the appellant has completely ignored the reasons given by the court below for refusing the application to set aside the judgment. The ground of appeal and the issue formulated by the appellant are unrelated to that reason. The ground of appeal and consequently, issues formulated must arise from the judgment. In SARAKI & ORS. V. KOTOYE (1992) 9 NWLR (PT.264) 156, the Supreme Court of Nigeria per Karibi-Whyte, JSC, at page 345, held that it is well settled preposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. In the present case the grounds of appeal and issue number two formulated therefrom being unrelated to the grounds or reasons of the decision, issue number two as well as the submission of the learned counsel for the appellant on the said issue are hereby struck out. See also ABDULLAHI V. ALEWA (1999) 5 NWLR(PT.602) 196 at 202.

In the result, I hold that there is no merit in this appeal and is hereby dismissed with costs assessed at =N=5,000.00 in favour of the respondent against the appellant.

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Other Citations: (2006)LCN/1975(CA)