Ogunmola V. Mari Mohammed Kida (2001)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

In the court below the plaintiff who is now the respondent in this appeal claimed the following reliefs in his statement of claim, which supersedes the writ. See Korobotei v. Obubo (1999) 9 NWLR (Pt.620) 655.

(a) An order of specific performance compelling the defendants jointly and severally to conclude the agreement assignment in respect of property situate and lying at No. 4A Ahmadu Close Damboa Road, GRA., Maiduguri between the plaintiff and the defendant by delivering of the title deeds and physical possession of the said property to the plaintiff.

Or in the alternative

An order for the repayment to the plaintiff the sum of N625,000.00 by the defendants being the sum collected by the defendants from the plaintiff as consideration for the assignment of the said property.

N50,000.00 general damages for breach of the said contract of assignment.

(b) The cost of this suit.

Briefly put, the case of the plaintiff is that the plaintiff on 24th of August, 1994 bought the above house from the 2nd defendant/appellant, who was introduced to him by the 3rd defendant, an estate valuer. The defendant paid the sum of N500,000.00 agreed upon, receipt of which 2nd defendant acknowledged, and undertook to release to the plaintiff the original title documents as soon as the 1st defendant would have collected it from the 2nd defendant/appellant who was resident in Ibadan. The title documents were not released to the plaintiff/1st respondent, instead the sum of N125,000.00 additional sum was collected from the plaintiff as deposit for the other twin bungalow. Up till the time the plaintiff instituted the action the title documents had not been released to him.

On 28/2/95, the plaintiff was given leave to:-

1. Issue and serve the 2nd respondent with writ of summons and any other court processes out of jurisdiction.
2. Serve the 2nd, 3rd and 4th respondents with the writ of summons and other court processes by means of substituted service by pasting same at No. 4A Ahmadu Bello Close G.R.A., Maiduguri being the last known place of abode of the 2nd, 3rd and 4th respondents.

The plaintiff filed a motion on notice for an order to enter judgment for the plaintiff/applicant in Suit No. M/391/94 in default of defence by the defendants/respondents as per paragraph 18 of the statement of claim of the plaintiff. Before the motion could be moved, Counsel for the 4th and 5th defendants filed a motion on notice for an order extending the time within which to enter conditional appearance, and to deem the proposed memorandum of appearance under protest as having been duly filed and served on the plaintiff.

The motion was moved and on 26/3/96, the learned trial Judge granted the application as follows:-

“Having regard to paragraphs 2 – 5 of the affidavit, I am of the view that the court should express its discretion and grant leave for the applicants to enter conditional appearance as prayed. Accordingly, I grant same. If the necessary’ filing fees have been paid same is deemed to have been filed and served.”

None of the respondents filed a statement of defence, even after the above order was obtained, hence the motion for judgment was moved on 12/12/96, and ruled upon on 24/12/96. In support of the motion are the following vital paragraphs of the affidavit.

3. That I was informed by Haruna Y. Mshelia of counsel in my Solicitors Firm whom I verily believe that the writ of summons together with my statement of claim has been served on the defendants/respondents on 7th July, 1995.
4. That I was further informed by the said Haruna Y. Mshelia whom I verily believe that the 1st and 5th defendants/respondents were served personally by the bailiff of this Honourable Court.
5. That I was also informed by the said Haruna Y. Mshelia whom I verily believe that the 2nd, 3rd and 4th defendants/respondents were served by substituted means pursuant to an order of this Honourable Court.
6. That it is now over 5 months, since when the writ of summons and statement of claim were served on the defendants/respondents.
7. That I was also informed by Haruna Y. Mshelia whom I verily believe that none of the defendants/respondents entered appearance to this suit until 26/3/96, when the 2nd and 5th defendants/respondents were given leave to enter conditional appearance.
8. That the 2nd and 5th defendants/respondents made the application for their conditional leave (sic) only when served with our motion for judgment filed on 18/9/95.
9. That since leave to enter conditional appearance was granted on the 26/3/96 they have not taken step to regularise their position in this suit.
10. That the 2nd and 5th defendants/respondents are out of time to enter defence to this suit.
11. That the plaintiff has been held to ransom by the defendants/respondents without any just cause.

The 1st defendant filed a counter-affidavit, which in essence alleged incompetence of the writ before the court. The learned trial Judge after considering the affidavits and submissions of counsel entered judgment in favour of the plaintiff as follows:-

“The defendants are hereby ordered to refund to the plaintiff the sum of N625,000.00 collected by them from the plaintiff as consideration for a house lying and situate at No. 4A Ahmadu Close Damboa Road, Maiduguri which house they did not make available for the possession of the plaintiff. The Court cannot enforce the agreement for the sale of the house in view of the order above.”

In compliance with Order 6 rules (2) and (4) of the Court of Appeal Rules 1981 (as amended), Counsel exchanged briefs of argument, and appellant’s reply brief which were adopted at the hearing of the appeal. A notice of discontinuance against the 2nd, 3rd and 4th respondents was filed, and on 5/12/2000 the names of the 2nd, 3rd and 4th respondents were struck out from the appeal. On 2/3/98 a notice of preliminary objection was filed by Counsel for the 1st respondent, the grounds of which are:-

1. Leave of court is necessary for this appeal.
2. No such leave was obtained before filing this appeal.

At the hearing of the appeal, learned counsel for the respondent informed the court that he had dealt with the notice of preliminary objection in his brief of argument, and adopted the argument. The argument covering the preliminary objection is under issue (1) in the respondent’s brief of argument. The issue is whether this appeal is not incompetent before this Honourable Court. I have perused the grounds of appeal and I cannot find that any of the grounds is related to the issue. It is trite law that issues derive their source from grounds of appeal, and not just from nowhere. An issue formulated must be distilled from a ground or grounds of appeal, and where it is not encompassing a ground of appeal it becomes a non issue and must be ignored. See Labiyi v. Anretioia (1992) 8 NWLR (Pt.258)139, Modupe v. State (1988) 4 NWLR (Pt.87) 130 and Oshoboja v. Amuda (1992) 6 NWLR (Pt.250) page 690 on such issues raised by respondent as in the instant case. Likewise, whatever argument covering it, if any must be discountenanced. See Osinupebi v. Saibu (1982) 7 S.C. 104, Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria (No.2) (1987) 1 NWLR (Pt.49) 284.

In this respect, since the above issue has no connection with any of the grounds of appeal in this appeal, the issue is struck out, and the argument canvassed thereunder is hereby discountenanced. However, in view of the fact that the nature of the complaint borders on the jurisdiction of this court to hear the appeal, which the court can raise suo motu, I will consider the competence of the appeal, before proceeding to deal with the appeal proper, for if the appeal is found to be incompetent it puts an end to it. See Oloriode v. Oyebi (1984) 1 SCNLR 390; Odiase v. Agho (1972) 1 All NLR (Pt.1) page 170, and Fadiora v. Gbadebo (1978) 3 S.C. 219 cited by learned counsel for the appellant in his appellant’s reply brief.

In the words of Achike, J.S.C. in the case of Ndigwe v. Nwude (1999) 11 NWLR (Pt.626) page 314 at 331 –

“The purpose of a preliminary objection is, if successful, to terminate the hearing of the appeal limine either partially or in toto.”

By virtue of the provisions of Section 220(1)(a) of the Constitution of the Federal Republic of Nigeria Cap. 62, 1990 Laws of the Federation of Nigeria –

220(1) An appeal shall be from decisions of a High Court to the Federal/Court of Appeal as of right in the following cases:-

(a) Final decisions in any civil or criminal proceedings before the High Court silting at first instance.

The pertinent question now is, is the decision now appealed against a final one? The decision is a refusal to set aside the judgment entered by the lower court in default. Learned counsel further submitted in the same brief that the default judgment delivered by the lower court was a final judgment, which required no leave before the appellant can appeal. He placed reliance on the case of Emawu Okafor v. John Ezenwa (1992) 4 NWLR (Pt.237) page 611. I could not agree more. The decision was final and not at all interlocutory for it finally disposed of the rights of the parties. By refusing to set aside the judgment he had entered in favour of the respondent, the learned trial Judge had laid everything before him to rest, so to say. It is only a Court of Appeal that can reverse it, if need be. This thus made the judgment final and not an interlocutory one that required leave of court. See Nwekeson v. Onuigbo (1991) 3 NWLR (Pt.178) page 125.

The appellant in his brief of argument raised five issues for determination, while the respondent raised four issues, I will adopt the appellant’s issues, though not all, for reasons which I will discuss later in this judgment. Learned Counsel for the respondent in his brief of argument has objected to issues 1, 2 and 4 formulated by learned counsel for the appellant as being incompetent, in that they are not based on the grounds of appeal filed by the appellant. He referred to the cases of Bamgboye v. Olanrewaju (1991) 4 NWLR (Pt.184) page 132; Onwiamere v. State (1991) 4 NWLR (Pt.186) page 428 and another case. I have looked at the issues complained of, and I tend to agree with learned counsel that issue 2 is superfluous, and Issue (4) is not covered by any of the 3 grounds of appeal. In this respect, I am discountenancing issues (2) and (4) for it is trite that issues for determination must derive their source from grounds of appeal i.e. they must be distilled from grounds of appeal, and where they are not they are incompetent and must be discountenanced. See Labiyi v. Anretiola, Modupe v. State and Oshoboja v. Amuda (supra.)

I will start with the first issue which is, whether the issuance and service of a writ of summons are issues that affect the jurisdiction and competence of a court to determine a suit. It is a fact that the jurisdiction of a State High Court is exercised in accordance with the following provisions:-

“The High Court of a State shall exercise jurisdiction vested in it by this Constitution or by any law in accordance with the practice and procedure (including the service and execution of all civil and criminal processes of the court) from time to time prescribed by the House of Assembly of the State”.

It is also a fact that the relevant practice and procedure referred to above in the instant case is the Borno State Civil Procedure Rules 1987. A civil action can be instituted through writ of summons, and the procedure for the issuance of the writ of summons is provided for in Order 5 of the said civil procedure rules. Learned Counsel for the appellant has contended that the relevant rules under this Order make compliance with the procedures for the issuance of a writ of summons mandatory through the use of the word ‘shall’. He referred to the case of Ngushaku Achineku v. Samuel Ishaya (1988) 4 NWLR (Pt.89) page 411. He submitted that for the High Court to be competent to exercise jurisdiction over a claim through a writ of summons, the provisions of Order 5 (supra) must be strictly complied with. Learned Counsel has inferred that the provisions of the said Order 5 have not been complied with, but he did not enlighten the court on any of the rules that have not been complied with. Learned Counsel further contended that by virtue of Sections 33 and 239 of the Constitution of the Federal Republic of Nigeria it is imperative that a person whose civil right is being determined must be put on notice, and that the F combined effect of sections 97 and 99 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria and Order 12 of the rules make it mandatory that processes of court be served on the other party. He placed reliance on the cases of A.C.B. v. Losada (Nig.) Ltd. & Another (1992) 2 NWLR (Pt.225) 572, and Nureni Mayegun v. Sir Adetokunbo Ademola (1987) 3 NWLR (Pt.64) 236.

Although Section 33 of the Constitution (supra) stipulates thus:

“33(1) In the determination of the civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair heating within a reasonable …”

A court has the duty to look at the facts closely before determining whether in fact the other party heeded the provisions of the law that would enable him avail himself of the principle of fair hearing. A careful perusal of the record of proceedings shows that, the appellant was presumably served with the writ of summons albeit by substituted means because of the presence of the court order of 28/2/95. If therefore the appellant was served and refused to put in a defence for himself after an intervening reasonable period, can he rightly claim that he was not put on notice, or that he was deprived of fair hearing? I think not, for by refusing to file a statement of defence after the period allowed by the Borno State Civil Procedure Rules (supra), and by neglecting to seek an order of extension of time to do so, he has on his own’ deliberately shut himself out of the temple of justice, and he has himself to blame for whatever misfortune befalls him. That is if he was actually served, and the writ was validly issued. The issue of the validity of the writ will be discussed in detail later and it is after I have fully found the answer to the validity of the writ, that I can resolve this issue.

The next issue to be treated is issue No. (3) in the appellant’s brief of argument, which is, whether the trial Judge was right when he held that the issuance of the writ of summons could not be raised by the appellant at all during argument of motion. Learned Counsel for the appellant in arguing this issue attacked a finding of the lower court which reads:-

“Let me at this juncture dispose of the issue of whether the applicant can rely on the ground that there was no valid writ issued before the issue of service could be visited. I am in full agreement with Mr. Mshelia that parties are bound by the case they set before the court. In the application, the two (2) grounds have been given for the application. Mr. Olasuji Esq., cannot therefore import into the suit ground what (sic) are not contained therein. The issue of validity of the writ is alien to the application of the applicant. It is not one of the grounds set out in the motion. Therefore, same cannot be canvassed. I am in full agreement with Mr. Mshelia that the ground and the submission thereon must be and are hereby disregarded.”

Learned Counsel for the appellant submitted that the appellant was right to raise the issue of the validity of the issuance of the writ of summons during the argument of his motion for the reasons that such issue as it borders on jurisdiction of the court can be raised at anytime, and secondly that the 1st defendant had sufficient notice of the issue and as such cannot be caught by surprise. Learned Counsel for the respondent in his own submission expressed the view that the appellant having set out his grounds in the application as is required by Order 2 rule 2(2) of the Borno State High Court (Civil Procedure) Rules, he cannot be heard to argue an alleged ground not contained in the notice of the motion. According to counsel, where a party categorically specifies the grounds of his application on the process served on the other party, he is bound to restrict himself to the grounds specified. It is a fact that the respondent in his statement of claim alluded that the appellant lived outside the jurisdiction of the court, when he averred thus:-

“3. That the second defendant is a business man who resides at Ibadan, Oyo State.

11. Based on the introduction … and the 2nd defendant acknowledged receipt of the said amount on the 24th of August 1994, and undertook to release to the plaintiff the original title document as soon as possible after the 1st defendant must have accompanied the 2nd defendant to Ibadan where he will collect them (sic) document and bring it to the plaintiff.”

Agreed that having made the above averments, it can be presumed that the respondent already knew of the residence of the appellant being outside the jurisdiction of the Borno State High Court, but is that to say that he will be precluded from having an advance knowledge of the battle before him in court, when the judgment he has succeeded in obtaining is sought to be set aside? I think not, for by virtue of Order 2 rule 2(2) the grounds of objection must be stated. The said provision reads:-

“2(1) Any application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2) Any application under the foregoing paragraph may be made by summons or motion on notice, and the grounds of objection shall be stated in the summons or notice of motion.

Italics is mine.

The above provision is clearly mandatory, and is expected to be complied with by anybody seeking the order sought in the instant case, and I believe the appellant’s Counsel was quite aware of this, and complied with the rule when he prepared his motion paper to set aside the judgment. In the motion paper he set out the grounds for the application as follows:-

]. The defendant/applicant was not served with the processes filed in this suit in accordance with the law.

2. The judgment and the subsequent order for attachment were obtained by fraud.

Although the appellant’s counsel was aware of the need to set out the grounds and he did set them out, but as an after thought (that is my view) he raised the ground of the validity of the writ which was of course outside the grounds he has set out above, it was bound to spring surprise at the respondent, since he was not put on notice of what to expect at the hearing of the motion in order to be prepared for it, and he was not prepared for it. That was definitely unfair on the respondent, as he was not availed of the opportunity given to him by law. It is settled law that a party must always put the other party on notice of what to expect in court. See the cases of George and others v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 and A.-G., Anambra State v. Onuselogu Ent. Ltd. (1987) 4 NWLR (pt.66) 547 relied upon by learned counsel for the appellant. See also Total (Nig.) Ltd. v. Nwako (1978) 5 SC 1; Emegokwue v. Okadigbo (1973) 4 S.C. 113; and James v. Mid-Motors (1978) 11- 12 SC 31.

The law frowns at this practice, and the courts would definitely not tolerate it, but then, since the issue borders on jurisdiction, which a court can take suo motu as already discussed above, the learned trial Judge should not have shut his eyes to it. He should have considered it. See the cases of Fadiora v. Gbadebo and Oloriode v. Oyebi supra. For the foregoing reasoning, I am of the opinion that the learned trial Judge erred to hold as he did, in the above reproduced passage of the judgment. For the foregoing the issue just discussed is in the circumstance resolved in favour of the appellant, and so ground of appeal No. (1) to which it is married succeeds and it is hereby allowed.

The next issue is, whether the trial judge was right to have held that he was satisfied that the appellant was duly served with the processes of court.

The grouse of the appellant under this issue is against the finding that the appellant was served, with the writ. Perhaps, I should look at the counter-affidavit to the motion to set aside (of the respondent) on the issue of service, before I commence the treatment of this issue. Paragraph (6) of the said counter-affidavit states:

“That the writ of summons and other court processes have been duly served on the applicant by substituted service pursuant to the order of this Honourable Court made on the 28th day of February, 1995.”

It is on record that orders were made by the learned trial Judge to serve the 2nd defendant/appellant out of jurisdiction and by substituted means. The court’s order dated 28/2/95 reads inter alia as follows:-

“IT IS HEREBY ORDERED THAT:-

Leave be and is hereby granted to the applicant to:-

1. Issue and serve the 2nd respondent with writ of summons and any other court processes out of jurisdiction.
2. An order to serve the 2nd, 3rd and 4th respondents with the writ of summons and other court processes by means of substituted service by pasting same at No. 4 Ahmadu Bello Close G.R.A., Maiduguri being the last known place of abode of the 2nd, 3rd and 4th respondents”.

The above order thus supports paragraph (6) of the counter affidavit reproduced above. Learned Counsel for the appellant is however not satisfied that there was service, for according to him Order 12 rule 1 of the Borno State High Court (Civil Procedure) Rules has not been complied with. The said rule stipulates thus:-

“1. Service of writs of summons, notices, petitions, pleadings, orders, summonses, warrants and of all other proceedings documents, or written communications of which service is required, shall be made by the Sheriff or a Deputy Sheriff, Bailiff, Officer of the court, or by a person appointed therefore (either especially or generally) by the Court or by a Judge in Chambers, unless another mode of service is prescribed by these rules, or the court or a Judge in Chambers otherwise directs”.

I believe the above rule was not contravened, and as far as I understand it, the argument of Learned Counsel for the appellant on the name of the officer of court who served the process is insignificant. Learned Counsel placed heavy weather on the date the appellant was served, inferring that the process was not served in February 1995 as held by the Learned trial Judge, because of the date on the order, and referred to paragraphs (3) and (5) of the affidavit in support of the motion for judgment. I agree that because of the date of the order, it is possible that service was not effected in the said month of February.

In further arguing this issue, learned counsel for the appellant complained about other fundamental issues that the Court was silent upon and which were canvassed. They are:-

1. The compliance with the provisions of sections 97 and 99 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria (1990).
2. The compliance with Order 5 rule 2 as to the place of abode of the appellant.
3. The regularity of the Order of the court in granting a substituted service within jurisdiction against a party that is said to reside outside jurisdiction.
4. That the process was filed after the grant of the order for substituted service covered by the order of court dated 28/2/95.

It is pertinent that I reproduce the above sections of the Sheriffs and Civil Process Act (supra) for a proper understanding of Counsel’s argument. Section 97 states:-

“97. Every writ of summons for service under this part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say) –

”This summons (or as the case may be) is to be served out of the …State (or as the case maybe …) and in the …State (or as the case may be)”

99. The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period. A thorough perusal of the writ on page (1) of the printed record of proceeding discloses non compliance with the above provisions.

On (2) above the said Order 5 rule (2) of the rules (supra) provides thus:-

2. The writ of summons shall contain the name and place of abode of the plaintiff and of the defendant so far as they can be ascertained; it shall state briefly and clearly the subject matter of the claim, and the relief sought for, and the date of the writ and place (called the return-place of hearing).

Again, the writ in the instant case does not contain the matters stated above. In fact, it contains the name and abode of the 1st defendant only i.e. Pastor Mohammed Audu Mshelia.

Learned Counsel relied on the cases of Nwabueze v. Okoye (1988) 4 NWLR (Pt.91) 644, NEPA v. Onah (1997) 1 NWLR (Pt.484) 680, and Victor Otti v. Mobil Oil Nigeria Ltd. (1991) 7 NWLR (Pt.206)700, in support of his submissions under this issue, that failure to comply with the (supra) provisions denied the lower court competence and jurisdiction to determine the suit, as the provisions are conditions that are precedent to the validity of the service of the writ. Learned Counsel for the respondent has replied that reliance on the above authorities is misleading, as in the cases the writ of summons are nullity as such there could be no valid service. He also placed reliance on the case of Elebute & Ors. v. Faleke and Anor. (1995) 2 NWLR (Pt.375) page 82. I do not subscribe to the submission of learned Counsel that the cases cited by Learned Counsel are misleading, as they are not. They dealt with vitiation of a writ where there is non compliance with the provision of the Sheriffs and Civil Process Law (supra), and the rules of Court particularly the said Section 97 of the said Sheriffs and Civil Process Law in the N.E.P.A. case (supra). In that case the Supreme Court in no uncertain terms reiterated the settled law and the consequence of non compliance with the provisions of Section 97 of the said Sheriffs Law. As a matter of fact the cases are not dissimilar to the case in hand. For the foregoing reasoning, the writ in this case is a nullity, and so was the service. It therefore rendered the case incompetent, and robbed the learned trial Judge of jurisdiction.

Learned Counsel for the appellant has complained against the order of 28/2/95, and that the orders contained therein are contradicting. The orders are self explanatory and a close examination of them disclose that they are indeed contradictory, in the sense that one was for service of process out of the jurisdiction, (which presupposes that the learned trial Judge was satisfied that one or more of the defendant was resident outside the jurisdiction of the court) and then ordered substituted service of same on the 2nd, 3rd and 4th defendants, when it is on record that the first order was in fact directed at the 2nd defendant/appellant, as the statement of claim and other proceedings show. This is a real bundle of contradiction. As a matter of fact I would say that the 2nd defendant/appellant should not have been included in that particular order of 28/2/95, but possibly in another separate order later. On the finding of the court that the appellant was served by substituted service sometime in February 1995, I agree with learned Counsel that there is nothing on record to show that he was so served on that day. In the light of the foregoing reasoning, I resolve the above issue and issue (1) in favour of the appellant. Grounds of appeal Nos. (2) and (3) to which they are married hereby succeed.

Before I conclude this judgment I would like to revisit the issues formulated for determination by the appellant’s counsel in his brief of argument. Six issues were formulated, whereas only three grounds of appeal were filed. More grounds were to be expected according to the notice of appeal, but then more did not come. The only grounds for the treatment of the appeal were thus the only ones in the notice of appeal. In the circumstances not more than three issues should have been formulated. This court and the Supreme Court have always frowned at the proliferation of issues, See Anaeze v. Anyaso (1993) 5 NWLR (Pt.291) 1, and U.B.A. Plc. v. Ekene Dilichukwu (Nig.) Ltd. (1999) 12 NWLR (Pt.629)128. Issues for determination are meant to be drawn from grounds of appeal, and are for the purpose of easier treatment of the appeal. As they are distilled from grounds of appeal and derive their source from therein, they cannot be in excess of the grounds of appeal filed as in this case although it can be versa visa, i.e. an issue can be distilled from more than one ground. It is settled law that issues that do not and cannot relate to grounds of appeal are non issues, as they have no feet to stand on and must therefore be discountenanced, see the above cases on incompetent issues.

It is clear from the issues in the appellant’s brief of argument that only the issues treated above i.e. issues (1), (3) and (5) are related to the grounds of appeal. Issues (2), (4) and (6) have no legs to stand on so they are discountenanced. In the same vein, the position of the law is that arguments canvassed thereunder are inconsequential and must be discountenanced. See Oshinupebi v. Saibu and Western Steel Works Ltd. v. Iron and Steel Workers Union of Nigeria supra.

Learned Counsel for the respondent filed a notice of intention to contend that the ruling should be affirmed on grounds other than those relied upon by the court below. This was brought pursuant to Order 3 rule 14(2) of the Court of Appeal Rules and the grounds for the notice read:-

1. That the appellant herein having raised the issue of issuance of the writ of summons and service of same in motion No. M/540m/96 and lost and the court below, cannot be entertained on the same issue at the court below through another motion.
2. That motion M/456m/97 raises the same issues canvassed and lost by the appellant in motion No. M/540m/96 and therefore the court below cannot entertain it as to do that will amount to the court below sitting on appeal over its decision which is not possible under our legal system.
3. That as a result of the above motion M/456m/97 the subject matter of this appeal is incompetent and an abuse of the judicial process. Again, the above grounds are related to matters of jurisdiction, and the nature of the complaints in this case is so fundamental and goes to the very root of the case. With the writ so bad and incompetent there was nothing to rule upon before the court. As a matter of fact, the whole proceeding was a nullity. In this respect, I overrule the above notice and dismiss it, I have deliberately left the treatment of the notice until now, because it has no merit.

In the final analysis, the appeal succeeds. The default judgment of the Borno State High Court dated 24th of December, 1996 is hereby set aside. The order of the court dated 17th February, 1997 granting leave to the 1st respondent to issue writ of execution against the immovable property of the judgment debtors is also set aside. I make no order as to costs.

---

Other Citations: (2001)LCN/0954(CA)