FORTE OIL v. OBASI (2020)

FORTE OIL v. OBASI

(2020)LCN/14033(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/OW/435/2017

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

FORTE OIL PLC APPELANT(S)

And

CHIEF SYLVESTER M. OBASI RESPONDENT(S)

RATIO

WHETHER OR NOT ISSUES PROLIFERATED ARE COMPETENT

From the above it is clear that the issues of the Respondent are proliferated which practice has been deprecated several times by the Appellate Courts of this land, as such issues are rendered incompetent. This has become so notorious that it needs no authority to back it up. However a few cases will suffice:-
1. CLAY INDUSTRIES LTD. VS. AINA & ORS (1997) LPELR – 871 (SC)
2. OGBUANYINYA VS OBI OKUDO (NO. 2) (1990) 4 NWLR (PT. 146) 551 AT 567.
3. ANIE VS UZORKA (1993) 8 NWLR (PT. 309) 1 AT 17;
4. YISI (NIG) LTD VS. TRADE BANK PLC (2013) 7 NWLR (PT. 1357) 522 AT 535;
5. ODOGWU VS. THE STATE (2013) 14 NWLR (PT. 1373) 74
6. ABE VS. UNILORIN (2013) 16 NWLR (PT. 1379) 183
7. UWAZURIKE VS. NWACHUKWU (2013) 5 NWLR (PT. 1342) 503.
The ultimate fate of the issues formulated by the Respondent, having been proliferated is that they are incompetent and are therefore struck out. I shall therefore determine this appeal based on the issues formulated by the Appellant. PER ANDENYANGTSO, J.C.A.

WHETHER THE FAILURE TO ISSUE AND ENDORSE AN ORIGINATING PROCESS FOR SERVICE OUTSIDE JURISDICTION WILL AFFECT THE JURISDICTION OF THE LOWER COURT

This issue is a complaint against the Writ of Summons which was issued in Imo State High Court and was served in Lagos State. The Appellant has forcefully contended and submitted that the originating process was not properly endorsed as required by Order 3 Rule 9 of the Imo State High Court (Civil Procedure) Rules and Section 97 of the Sheriffs and Civil Process Act.
Now, Order 3 Rule 9 of the Imo State High Court (Civil Procedure) Rules, 2008 (nowOrder 3 Rule 10 of the 2017 Rules) provides:-
“a Subject to the provisions of the Sheriffs and Civil Process Act, a Writ of Summons or other Originating Process issued by the Court for service in Nigeria outside Imo State shall be endorsed by the Registrar of the Court with the following Notice:
“This Summons (or as the case may be) is to be served out of Imo State of Nigeria and in the State.”
Section 97 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990 provides:-
“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 may be) and in the state (or as the case may be).” Now it is indisputable that the Writ of Summons was issued in Imo State and served in Lagos State. The appropriate Form to be used for this is Form 2 under Order 3 Rule 4 of the Imo State High Court (Civil Procedure) Rules.
Both Order 3 Rule 9 of the Rules of the Lower Court and Section 97 of the Sheriffs and Civil Process Act mandatorily require that the endorsement to be made on the Writ of Summons shall be as follows:-
“This Summons (or as the case may be) is to be served out of Imo State of Nigeria and in the Lagos State.”
This Writ of Summons as contained on pages 1 – 3 of the Record dated and filed on the 15th September, 2016, does not contain the required endorsement as reproduced above. And yet leave was granted by the Lower Court on the 11th November, 2016 for the service of the Writ of Summons in Lagos, which service was said to have been effected on 14th March, 2017 (see pages 66 – 67 and 81 of the Record respectively). Yet I searched in vain for this process in the Record.
Now, the provisions of both the Rules of Imo State High Court (Civil Procedure) Rules and Sheriffs and Civil Process Act under reference are couched in mandatory terms with the word “Shall” being operative therein. This endorsement is a fundamental condition precedent to the issuance of the Writ of Summons required to be served out of jurisdiction of the issuing Court. Being so fundamental, its compliance is expected to be strictly carried out. Otherwise it is rendered incompetent, null and void. See N.E.P.A VS ONAH (1997) LPELR – 1959 (SC) where it was held at page 19:
“It is trite that where a defendant is out of jurisdiction no Writ for service can be issued except with the leave of the Court. The issue of the Writ of Summons and the service of the same Writ on a defendant are conditions precedent to the exercise of a Court’s jurisdiction over a defendant.”
See also NWABUEZE & ANOR VS. JUSTICE OBI OKOYE (1988) 4 NWLR (PT. 91) 664 where the Writ of Summons was irregularly issued by reason of failure to comply with the mandatory provisions of Section 97 of the Sheriffs and Civil Process Act which governs service out of the jurisdiction, the Supreme Court, Per Agbaje J.S.C held:-
”As I have said, the issue of Writ of Summons and the service of the same Writ on a Defendant are conditions precedent for the exercise of a Court’s jurisdiction on the Defendant…” PER ANDENYANGTSO, J.C.A.

IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State of Nigeria, sitting at Owerri Judicial Division, delivered by Hon. Justice E.F Njemanze J., on the 24th day of July, 2017, in which the claims of the Respondent, as plaintiff for breach of contracts were granted.

The Respondent, by a Writ of Summons dated 15th September, 2016 (Pages 1 – 3 of the Record and paragraph 31 of his statement of claim), had claimed the following reliefs:
“1. A Declaration that the seizure of the Elele Road SS by the Defendant and his officers and granting of same to another licencee without legally terminating their contract with claimant was in breach of the parties (sic) agreement.
2. An Award of N20, 000, 000. 00 (Twenty Million Naira) as general damages for the Defendant’s breach of its contract with the Claimant.
3. An Award of N2,769, 375.54 (Two Million Seven Hundred and Sixty-nine Thousand, Three Hundred and Seventy-five Naira, Fifty four kobo) as specific damages being amount of refundable Security Deposit paid by the Claimant as at date.

An Award of 10% per anum (sic) as interest on the liquidated sum of N2,769,375.54 (Two Million Seven Hundred and Sixty-nine Thousand, Three Hundred and Seventy five Naira, Fifty four kobo).”In granting the reliefs the Lower Court awarded the sum of N12, 000, 000. 00 (Twelve Million Naira) rather than the N20,000,000. 00 (Twenty Million Naira) claimed in relief 2 and 5% per annum rather than the 10% per annum as interest on the liquidated sum of N2, 769, 375. 54 (Two Million Seven Hundred and Sixty-nine Thousand, Three Hundred and Seventy-five Naira, Fifty-four kobo) claimed in the relief 4.
Piqued by the decision of the Lower Court, the Appellant on the 10th October, 2017 filed a Notice of Appeal containing seven grounds (pages 135 – 139 of the Record).
The grounds of Appeal, without their particulars are as follows:-
“GROUND ONE:
The Learned Trial Judge erred in law when assumed jurisdiction to hear and determine this matter on Writ of Summons and Statement of Claim which were not properly issued and served.
GROUND TWO:
The Learned Trial Judge acted without jurisdiction when he proceeded with

hearing of this matter on 14th February, 2017, 10th May, 2017, 31st May, 2017 and 24th July, 2017 without giving Notice of Hearing of the dates to the Appellant by serving a Hearing Notice for these proceedings.
GROUND THREE:
The Appellant was denied fair hearing and trial in the determination of the Respondent’s Application filed on the 14th February, 2017 allowing the Respondent to proceed to prove his case against the Appellant.
GROUND FOUR:
THE Appellant was denied fair hearing and trial in the proceedings of 10th May, 2017, 31st May, 2017 and 24th July, 2017 which were taken without serving the Appellant Hearing Notices and afforded opportunity to cross examine PW1, address the Court and been informed that final decision of the Court is to given.
GROUND FIVE:
The Learned Trial Judge erred in law and facts when he relied on the lack of Defence of the Appellant rather than on the strength of the Respondent’s case to enter judgment in favour of the Respondent.
GROUND SIX:
The Learned Trial Judge erred in law and facts when he held thus:
“He referred to other anomalies perpetrated by the Defendant

against him inclusive of its non-fulfillment of the covenant in the licencee agreement such as operating with obsolete and dilapidated facilities which the Defendant has the responsibility to changing, repairing and improving. These facilities remained unattended despite series of complaints to the Defendant. These indictments were not denied and are deemed to be true.”
GROUND SEVEN:
The Learned Trial Judge erred in law and on facts when he awarded the sum of N12, 000, 000. 00 (Twelve Million Naira) damages against the Appellant for breach of contract having held thus:
“The Plaintiff pleaded and gave evidence that since September 2013 of the forceful takeover of the Station and goods stored, he had lost earning and has been paying the bills of the attendants and security.”
The Reliefs sought from this Court are:-
“1. Allow the Appeal
2. Set aside the judgment of the trial Court
3. An Order striking out the suit; or
4. Dismissing the suit.”

The record of Appeal was transmitted to this Court on 14th November, 2017. The Appellant’s Brief of Argument, settled by Tosin Samuel Alawode

Esq., was filed on 24th November, 2017. The Respondent’s Brief of Argument settled by Kissinger Ikeokwu Esq., was filed on 20th December, 2017. The Appellant’s Reply to the Respondent’s Brief of Argument was filed on 23rd March, 2018 but with the leave of this Court granted on 28th June, 2018 was deemed properly filed and served on the same 28th June, 2018. The Appellant and Respondent filed list of additional authorities on 7/5/2019 and 26/6/2018 respectively.

When this appeal was heard on 27/1/2020, C.N Awusaku Esq., holding brief for Tosin Samuel Alawode Esq., appeared for the Appellant, adopted the Brief and Reply Brief of the Appellant and urged us to allow the appeal, set aside the judgment of the Lower Court and strike out or dismiss the suit of the Respondent. Kissinger Ikeokwu Esq., with N.A. Ohaga Esq., appeared for the Respondent, adopted the Respondent’s Brief and urged us to dismiss the appeal and uphold the judgment of the Lower Court. Learned Counsel however withdrew the Respondent’s Notice which was accordingly struck out.

Now, from the 7 grounds of Appeal, the Appellant formulated three issues for the determination

of this appeal, which are as follows:-
“ISSUE ONE:
WHETHER THE FAILURE TO ISSUE AND ENDORSED (sic) THE ORIGINATING PROCESSES FOR SERVICE IN LAGOS STATE OUTSIDE IMO STATE DID NOT AFFECT THE JURISDICTION OF THE LOWER COURT (GROUND 1)
ISSUE TWO:
WHETHER THE PROCEEDINGS OF 27TH MARCH, 2017, 16TH MAY, 2017, 31ST MAY, 2017 AND 24TH JULY, 2017 WERE NOT CONDUCTED WITHOUT JURISDICTION, FAIR HEARING AND FAIR TRIAL (GROUNDS 2, 3 AND 4)
ISSUE THREE:
WHETHER THE FINDING OF FACTS MADE BE (sic) THE LEARNED TRIAL JUDGE IS NOT PERVERT (sic) AS TO ALLOW THIS HONOURABLE COURT TO SET SAME ASIDE (GROUNDS 5, 6 AND 7).”

ARGUMENTS OF THE ISSUES:
ISSUE ONE:
Learned Counsel cited the Writ of Summons on pages 1 -3 of the Record and observed that it does not contain the appropriate endorsement for service outside Imo State and in Lagos State as required by Section 97 of the Sheriffs and Civil Process Act and Order 3 Rule 9 of the High Court of Imo State (Civil Procedure) Rules 2008which provisions Counsel quoted.

Learned Counsel then submitted that it is the law that a Writ of Summons proposed to be served outside jurisdiction of the

Court should, in addition to any endorsement, be endorsed with a notice that it is to be served out of the state where it is issued (named) and in another named state, referring to N.P.A VS. EYAMBA (2005) 12 NWLR (PT. 939) 409 AT 447 H-448 A; that in the instant case the required statutory notice was not endorsed on the Writ of Summons in defiance of the mandatory provisions referred to above, which renders it fundamentally defective as decided in FREEMAN OGBODUO PORBENI VS. PABOD FINANCE AND INVESTMENT COMPANY LTD (2000) ALL FWLR (PT. 63) 84; that the failure to endorse the Writ of Summons for service outside Imo State in Lagos State made the Writ incompetent as well as other processes accompanying the Writ, thereby robbing the Court of its jurisdiction to entertain the matter, since the Court has failed to abide by the procedure provided for issuance and endorsement of the originating processes as required by law, referring to:
1. BRAITHWAITE VS SKYE BANK PLC (2013) 5 NWLR (PT. 1346) 1 AT 15 C- D
2. EVONG VS MESSRS OBONO, OBONO & ASSOCIATE (2012) 6 NWLR (PT. 1296) 388 AT 404 B – G.

He further submitted that proper issuance and service

of Writ of Summons are conditions precedent for the exercise of the jurisdiction which the Court has in respect of the subject matter between the parties and that where they are lacking, it will be illegal for the Court to embark on any inquiry, referring to OKAFOR VS. IGBO (1991) 8 NWLR (PT. 210) 576 AT 484 – 485; SKYE BANK PLC VS. PENBURY NIG LTD (2016) ALL FWLR (PT 833) 1882 AT 1899 A – C.

Concluding on this issue, learned Counsel submitted that a nullity is in law a void act, without legal consequence which is not only bad but incurably bad and then urged us to resolve this issue in favour of the Appellant.

ISSUE TWO
This issue deals with non-service of hearing notices in respect of the proceedings conducted on 27th March, 2017, 10th May, 2017, 31st May, 2017 and 24th July, 2017 which rendered same conducted without jurisdiction and amounted to lack of fair hearing and fair trial. Learned counsel submitted that the failure to serve hearing notices on the Appellant in respect of the proceedings conducted on the said dates robbed the Lower Court of the requisite jurisdiction to entertain and determine the suit. He referred us to

the proceedings of 23rd January, 2017 and submitted that the non-service of hearing notices against the date referred to, robbed the Lower Court of the jurisdiction to entertain the suit, relying on: OKON VS. ADIGWE (2011) 15 NWLR (PT. 1270) 550 AT 371 D – H, APEH VS PDP (2016) ALL FWLR (PT. 824) 1 AT 19 A – B, U.B.A PLC VS. EFFIONG (2011) 16 NWLR (PT. 1272) 84 AT 103, D – E.

In respect of denial of fair hearing and fair trial, learned Counsel submitted that the Appellant was denied his fundamental right of cross examining the Respondent in his examination in chief when he testified before the Lower Court which was wrong in law, relying on GARBA VS. UNIVERSITY OF MAIDUGURI (1988) 1 NWLR (PT. 18) 550; OKPEH VS STATE (2017) ALL FWLR (PT. 894) 1499 AT 1510 E – H. Counsel then urged us to resolve issue two in favour of Appellant in the interest of justice and fairness as well as to restore his constitutional right.

ISSUE THREE
In contending that the finding of facts made by the Lower Court was perverse, Learned Counsel submitted that same was not sustainable both in law and on the facts before the Lower Court, relying on KASUMU VS OGUNDIMU

(2017) ALL FWLR (PT. 892) 1126 AT 1161, R – G; that the Lower Court failed to properly evaluate the evidence both oral and documentary before it but rather heavily relied on the non-filing of defence by the Appellant which has led to miscarriage of justice as the Respondent failed to prove his claims on the strength of his case relying on OKOYE VS. NWANKWO (2014) ALL FWLR (PT. 756) 471 AT 519 – 510, R – A. He referred to Exhibit 6 and submitted that the contract between the parties was not breached as Exhibit 6 merely suspended the contract and not terminated same and therefore the Lower Court was wrong to have held that the Appellant wrongly terminated the contract, relying onN.P.A VS. AHMED (2017) ALL FWLR (PT. 892) 1059 AT 1079, H; that the Lower Court did not interpret Exhibit 6 in its ordinary meaning, as it was enjoined to do, going by the authority of N.P.A VS. AHMED (SUPRA); that by clause xv of Exhibit 6 there was no termination of the contract but a mere suspension and that parties are bound by the terms of the contract, relying on:A. G RIVERS STATE VS. A.G AKWA-IBOM STATE (2011) 8 NWLR (PT. 1248) 31 AT 83, B – F

and that the Court is limited to giving effect to provisions or terms of the contract agreement between the parties. He relied on the following cases:-
1.AMINU ISHOLA INTL LTD VS. AFRIBANK (NIG) PLC.(2013) 9 NWLR (PT. 1359) 380,
2. AFRILEC LTD. VS. LEE (2013) 6 NWLR (PT. 1349) 1,
3. DASPAN VS. MANGU LOCAL GOVERNMENT COUNCIL (2013) 2 NWLR (PT. 1338) 203,
4. N.P.A AHMED (SUPRA) 1078, E-G 1081, D; OJO VS. UNILORIN (2017) ALL FWLR (PT. 892) 1089 AT 1124 – 1125, G – C etc.

Submitting further, learned Counsel stated that the cause of action of the Respondent is speculative, referring to OMOSOWAN VS. CHIEDOZIE (1998) 9 NWLR (PT. 566) 477 AT 485; that the portion of the judgment on page 98 lines 9 – 14 of the Record was not supported by evidence especially Exhibit 8 which was merely a response to the suspension and not a complaint.

Learned Counsel submitted that the Lower Court was misdirected on law and facts in awarding N12, 000, 000. 00 (Twelve Million Naira) damages against the Appellant for breach of contract in its holding at page 100 lines 1 – 4, rendering the finding of facts improbable, incredulous

and perverse as the award of damages was premised on the continuous payment of bills to the attendants and security guards of the filling station allegedly taken away from the Respondent by the Appellant. He urged us to hold that there was no basis for the award of N12, 000, 000. 00, relying on OMONUWA VS. WAHABI (1976) 4 SC 37 AT 47 – 48 AND N.P.A VS. AHMED (SUPRA)1078, E – G; 1082 – 1083, E – H.

Concluding, Learned Counsel submitted that the decision of the Lower Court runs contrary to the evidence and pleading; that the Lower Court took into account matters which it ought not to have considered; that the trial Court shut its eyes to the obvious; that the decision has occasioned a miscarriage of justice. He then prayed us to resolve this issue in favour of the Appellant, and then set aside the judgment of the lower Court by allowing the appeal, and strike out or dismiss the suit of the Respondent.

The Respondent formulated 4 issues for determination thus:
“1. WHETHER THE HONOURABLE COURT WAS RIGHT TO AWARD INTEREST OF 5% AGAINST THE PROVISIONS OF THE RULES THAT PROVIDES (sic) INTEREST NOT BELOW 10%
2. WHETHER

A PARTY WHO WAS SERVED WITH COURT SUMMONS AND GIVEN ALL THE OPPORTUNITY TO DEFEND HIMSELF BUT DELIBERATELY IGNORES SAME CAN BE HEARD ON APPEAL CHALLENGING THE PROCEEDINGS AND JUDGMENT ARISING THEREFROM. This issue relates to Issue one, two and three raised by the Respondent (sic).
3. WHETHER A PARTY WHO WAS GIVEN ALL THE OPPORTUNITY TO DEFEND A SUIT BUT CHOSE NOT TO CAN TURN BACK TO CLAIM HE WAS DENIED FAIR HEARING. This relates to issue (sic) two and three raised by the Respondent.
4. WHETHER THE COURT WAS RIGHT TO EVALUATE AND AWARD DAMAGES BASED ON THE UNCHALLENGED THE (sic) EVIDENCE OF THE RESPONDENT BEFORE IT UPON APPELLANT’S REFUSAL TO DEFEND THE ACTION. This relates to issue three raised by the Respondent.”

On 27/1/2020 at the hearing of this appeal, the learned counsel for the Respondent withdrew the Respondent Notice which was consequently struck out by this Court. Therefore issue one distilled from the Respondent Notice no longer stands, and is hereby struck out, along with the submissions thereon made. Accordingly, the remaining issues are renumbered 1 – 3.

ISSUE ONE:
Learned Counsel referred to service of the

Writ of Summons at pages 68 and 76, pages 61 – 67 and 78 of the Record and submitted that there was proper and adequate service of the Writ of Summons and other originating processes on the Appellant in their office at Victoria Island in Lagos which gave the Appellant all the opportunity to defend itself and urge us to hold that the Appellant was duly served with the Writ of Summons. Furthermore that the Appellant did not take steps to challenge the issuance and service of the Writ of Summons as required of it and so cannot now attack same on appeal, relying OKOYE VS. CENTER POINT MERCHANT BANK NIG (2008) (PT.1110) PAGE 357 PARA D (wrong citation) and SOCIETE GENERALE BANK (NIG) LTD VS. ADEWUNMI (2003) 10 NWLR (PT. 829) 526 AT 546 – 547 PARA H – A. He also relied on Order 9 Rule 1 of the Imo State High Court (Civil Procedure) Rules 2017 and Section 99 of the Sheriffs and Civil Process Act and submitted that the Appellant was given ample opportunity to defend the suit but failed, neglected or refused to do so at the Lower Court and that he cannot turn around to complain of lack of fair hearing, relying on ADEGOKE MOTORS LTD VS. ADESANYA (1989) 3

NWLR (PT. 109) 250; CHIDOBI VS. UJIEZE (1994) 2 NWLR (PT. 328) 554 to the effect that a defendant who intends to set aside a Writ of Summons served on him must do so timeously by:-
(a) entering an appearance on protest or
(b) entering conditional appearance and
(c) filing a motion in the Trial Court seized of the matter to set aside the writ or originating Summons on the ground complained of.

Furthermore, Learned Counsel relied on OLLY VS. TUNJI (2012) ALL FWLR (PT. 654) R. 11 AT 81 PARA B – C to say that irregularity on the writ or originating process only renders the writ voidable and submitted that the Appellant by its conduct has waived its right by failing to do any of the three things enumerated above and has therefore elected to ignore the defect and therefore waived its right to challenge the outcome of the writ dully served on it. He relied on ODUA INVESTMENT VS. TALABI (1997) 10 NWLR (PT. 523) 1 AT 51 PARA G – H; ORDER 20 RULE 12 OF THE IMO STATE HIGH COURT (CIVIL PROCEDURE) RULES 2017; SECTION 101 OF THE SHERIFFS AND CIVIL PROCESS ACT.

Learned Counsel submitted further that the cases of BRAITHWAITE VS. SKYE BANK PLC.

(2013) 5 NWLR (PT. 1346) 1 AT 15 PARA C – D; N.P.A VS. EYAMBA (2005) 12 NWLR (PT. 939) 409 AT 447 H – 4888 and OKAFOR VS. IGBO (1991) 8 NWLR (PT. 210) 476 AT 484 – 485 cited and relied upon by the Appellant were cited and quoted out of context as they are at variance with the facts of this case and therefore in-applicable in the circumstances. He furthermore submitted that this appeal ought to fail by virtue of the failure of the Appellant to enter appearance or file a defence in this case, relying on SHETTIMA & ORS VS. SHETTIMA (2016) LPELR – 40178 (CA); that equity aids the diligent and not the indolent, referring to ADEGOKE MOTORS LTD (SUPRA); that this appeal is improper as the Appellant did not take any objection to the hearing of the case at the Lower Court, relying on ALAKE VS. ABALAKA (2002) FWLR (PT. 88) 931 OR (2003) 6 NWLR (PT. 815) 124.

We were urged to resolve this issue in favour of the Respondent being the plank upon which the entire case of the Appellant now stands and dismiss the appeal.
ISSUE TWO:
WHETHER A PARTY WHO WAS GIVEN ALL THE OPPORTUNITY TO DEFEND A SUIT BUT CHOSE NOT TO CAN TURN BACK

TO CLAIM HE WAS DENIED FAIR HEARING.

On the above issue, the Learned Respondent counsel submitted thus:
1. That a party who waived its right to defend an action at the Court below cannot be heard on appeal challenging the decision arising therefrom, as it is only permitted in law to contend only the issue of service, which the Appellant failed to do but only challenged endorsement of the writ.
2. That the Record of Appeal shows that the Writ of Summons was duly served on the Appellant on the 9th December, 2016 in its registered office at Victoria Island Lagos.
3. That the motion filed by the Respondent to be allowed to prove his case was duly served on the Appellant, referring to pages 80 – 82 of the Record.
4. That despite the service of the Writ of Summons and the notice on the Appellant it refused to join issues with the Respondent and so the lower Court properly evaluated the evidence before it before passing judgment as it did and as such, this Court should not disturb same, since there was no breach of the Appellant’s right to fair hearing or fair trial by the Lower Court; that the failure of the Appellant to avail

itself of the opportunity to defend itself amounted to admission of the claim of the Respondent, thus the lower Court properly accepted and made use of the unchallenged evidence of the Respondent in arriving at its judgment, relying on ODUME VS. NNACHI (1964) 1 ALL NWLR 329; AJIBADE VS. MAYOWA (1978) 9 – 10 SC 1; OMO VS. JSC, DELTA STATE (2000) 12 NWLR (PT. 682) 444; IGBOKWE VS. UDOBI (1992) 3 N.W.L.R (PT. 228) 214; OYEYIPO VS. OYINLOYE (1987) 1 NWLR (PT. 50) 356;that a party who chose not to defend a matter cannot turn back to challenge the outcome therefrom, relying on ADEWUNMI VS. ATTORNEY GENERAL, ONDO STATE (1996) 8 NWLR (PT. 464) 73; AMERICAN CYANAMID CO. VS VITALITY PHARM LTD (1991) 2 NWLR (PT. 171) 15 AT 18; USANI VS DUKE (2006) 17 NWLR (PT. 1009) 610 AT 636 PARA B – C, 639 PARA D – B; 642 – 643 PARA H-B, 649 PARA D – G; MACHIKA VS. K. S.H.A (2011) 3 NWLR (PT. 1233) 15 AT 46 PARA A – C. Counsel then urged us to resolve this issue in favour of the Respondent.

ISSUE THREE:
WHETHER THE COURT WAS RIGHT TO EVALUATE AND AWARD DAMAGES BASED ON THE UNCHALLENGED EVIDENCE OF THE RESPONDENT BEFORE IT UPON

APPELLANT’S REFUSAL TO DEFEND THE ACTION.

Learned Counsel submitted that the Lower Court properly evaluated the evidence before it in arriving at the decision regarding damages. Learned Counsel summed up the case of the Appellant in his averments in paragraphs 11 – 20 of the Statement of Claim which he contended, contained unchallenged averments. He referred to Exhibit 4 which clearly stipulated the mode of termination of the agreement between the parties, especially clause 10 and 5C (11) and submitted that the agreement did not create an exception on the mode of termination of the contract as the parties clearly created a clause for the mode of termination of the contract by either of the parties and that the Appellant cannot be allowed to rescind at this stage since there is nowhere throughout the agreement where the parties agreed to situations where the Appellant can terminate the contract by simply overrunning the business without regards to the Respondent in terms of the agreement. Counsel further submitted that the submission of the Appellant’s Counsel that no termination of the contract has taken place or effect is rather

ridiculous as page 1 of the licencee agreement on page 28 of the Record clearly shows that the subject matter of the agreement is in respect of the ELELE Road SS Owerri, referring to paragraphs 32 – 34 of the statement of claim which he contended, remains unchallenged. Counsel also contended that it would be ridiculous to contend that the parties agreed that the Appellant can take back the ELELE ROAD SS and hand over same to someone else to run or manage from September, 2013 till date without termination of the contract or any recourse to the interest of, or relationship with the Respondent and still claim that the contract has not been breached. Counsel wonders that if the evidence of the Respondent that the Appellant had taken over the station and given same to someone else who has been running same from September 2013 till date, does not amount to an illegal termination of the contract on the part of the Appellant, then under what part of the agreement was the Appellant operating? He contended that the Appellant acted with outrageous impunity and continued in the impunity even after the Respondent had applied for the Security Deposits and further filed

the suit up to judgment showing lack of concern and regards to its contract with the Respondent, referring to OLLY VS. TUNJI (SUPRA) RATIO 3 PAGE 86 PARA E.

Learned Counsel submitted that the Lower Court was right in evaluating the unchallenged evidence of the Respondent before it in arriving at a decision as the cause of action is the loss of business by the Respondent from September, 2013 till date without any justifiable cause from the Appellant and the refusal of the Appellant to even refund the Security Deposits paid by the Respondent after taking back the station and giving same to another dealer who now runs the place. Counsel emphasized that the Appellant refused to join issues with the Respondent or defend the suit and even after the judgment, the Appellant refused to apply to have the judgment set aside to enable it defend but rather chose to appeal against a suit it never defended at the lower Court in mala fide to continue to deny the Respondent the benefit of reaping the fruit of his judgment. Counsel urged us to resolve this issue in favour of the Respondent and uphold the judgment of the Lower Court and dismiss the appeal in its entirety,

with cost as the Appellant has merely set out to further frustrate the Respondent in the pursuit of justice.

The Appellant, in its Reply Brief filed on 23/3/2018 but deemed properly filed and served by order of this Court granted on 26/6/2018, based its submissions on the withdrawn Respondent’s Notice which has been overtaken by the withdrawal of the Respondent Notice and issue I distilled therefrom. Same is hereby discountenanced.

In respect of the remaining issues, learned Appellant’s Counsel submitted that they are proliferated as all the issues were distilled from grounds one to seven of the grounds of appeal. Counsel submitted that it is trite that parties are not allowed to raise more than a single issue from a single ground or set of grounds of appeal, as has been done in this case, calling for their being struck out on the ground of incompetency, relying on YISI (NIG) LTD VS. TRADE BANK PLC (2013) 7 NWLR (PT. 1357) 522 AT 535 A – F; ODOGWU VS. STATE (2013) 14 NWLR (PT. 1373) 74 AT 97 – 98 F – D; ABE VS UNILORIN (2013) 16 NWLR (PT. 1379) 183 AT 205, F – H and UWAZURIKE VS. NWACHUKWU (2013) 3 NWLR (PT. 1342)

503 AT 517 – 518 H – A.

Learned Counsel then urged us to strike out all the issues of the Respondent.

However, learned Counsel proceeded to reply to issues one and two of the Respondent in the event that this Court is inclined to consider the issues of the Respondent. He then made submissions on issues one and two accordingly.

I have already struck out issue one together with the submissions thereon, so they are overtaken by events and are hereby discountenanced.

On issue two, learned Appellant’s Counsel submitted that the position taken by the Respondent’s Counsel on the refusal or failure of the Appellant to defend the suit was wrong as the attack of the Appellant was based on jurisdiction, which can be raised at any stage before the trial Court or even Appellate Courts, relying on AMALE VS. SOKOTO LOCAL GOVT. (2012) 5 NWLR (PT. 1292) 181 AT 202, E – G; JEV VS. IYORTYOM (2014) ALL FWLR (PT. 747) 749 AT 753; UNIVERSITY OF CALABAR VS. SOCKET WORKS LTD (2014) ALL FWLR (PT. 743) 1947; UBN PLC. VS. DAVID LAB LTD (2014) ALL FWLR (PT. 714) 157.

Counsel further submitted that the right of appeal of a party is a

constitutional right which enjoys the solace of constitutional safeguards. He referred to BEN ANACHEBE VS. KINGSLEY IJEOMA & ORS (2015) ALL FWLR 183 AT 186 and submitted that the provisions of the Rules of Court cannot override the constitutional right of appeal granted to a party by the Constitution. He then urged us to resolve this issue in favour of the Appellant and against the Respondent.

RESOLUTION:
I shall begin the resolution of the issues raised by both parties by considering the issues formulated by the Respondent and as responded to in the Reply Brief of the Appellant, of course treating only issue two, three and four which have been renumbered as issues one, two and three.

Issue one of the Appellant is distilled from ground 1 of the Notice of Appeal. Issue two is distilled from grounds 2, 3 and 4 of the Notice of Appeal while issue three is distilled from grounds 5, 6 and 7 of the Notice of Appeal.

Issue two, now issue one of the Respondent relates to issues one, two and three of the Appellant which where distilled from grounds 1, 2, 3, 4, 5, 6 and 7 of the Notice of Appeal; issue three, now issue two of the Respondent

relates to issues two and three of the Appellant which were formulated from grounds 2, 3, 4, 5, 6 and 7 of the Notice of Appeal while issue four, now issue three of the Respondent, relates to issue three of the Appellant which was distilled from grounds 5, 6 and 7 of the Notice of Appeal.
From the above it is clear that the issues of the Respondent are proliferated which practice has been deprecated several times by the Appellate Courts of this land, as such issues are rendered incompetent. This has become so notorious that it needs no authority to back it up. However a few cases will suffice:-
1. CLAY INDUSTRIES LTD. VS. AINA & ORS (1997) LPELR – 871 (SC)
2. OGBUANYINYA VS OBI OKUDO (NO. 2) (1990) 4 NWLR (PT. 146) 551 AT 567.
3. ANIE VS UZORKA (1993) 8 NWLR (PT. 309) 1 AT 17;
4. YISI (NIG) LTD VS. TRADE BANK PLC (2013) 7 NWLR (PT. 1357) 522 AT 535;
5. ODOGWU VS. THE STATE (2013) 14 NWLR (PT. 1373) 74
6. ABE VS. UNILORIN (2013) 16 NWLR (PT. 1379) 183
7. UWAZURIKE VS. NWACHUKWU (2013) 5 NWLR (PT. 1342) 503.
The ultimate fate of the issues formulated by the Respondent, having been proliferated is that they

are incompetent and are therefore struck out. I shall therefore determine this appeal based on the issues formulated by the Appellant.

ISSUE ONE:
“WHETHER THE FAILURE TO ISSUE AND ENDORSED (sic) THE ORIGINATING PROCESS FOR SERVICE IN LAGOS STATE OUTSIDE IMO STATE DID NOT AFFECT THE JURISDICTION OF THE LOWER COURT.”

of Imo State of Nigeria and in the State.”
Section 97 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990 provides:-
“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 may be) and in the state (or as the case may be).” Now it is indisputable that the Writ of Summons was issued in Imo State and served in Lagos State. The appropriate Form to be used for this is Form 2 under Order 3 Rule 4 of the Imo State High Court (Civil Procedure) Rules.
Both Order 3 Rule 9 of the Rules of the Lower Court and Section 97 of the Sheriffs and Civil Process Act mandatorily require that the endorsement to be made on the Writ of Summons shall be as follows:-
“This Summons (or as the case may be) is to be served out of Imo State of Nigeria and in the Lagos

State.”
This Writ of Summons as contained on pages 1 – 3 of the Record dated and filed on the 15th September, 2016, does not contain the required endorsement as reproduced above. And yet leave was granted by the Lower Court on the 11th November, 2016 for the service of the Writ of Summons in Lagos, which service was said to have been effected on 14th March, 2017 (see pages 66 – 67 and 81 of the Record respectively). Yet I searched in vain for this process in the Record.
Now, the provisions of both the Rules of Imo State High Court (Civil Procedure) Rules and Sheriffs and Civil Process Act under reference are couched in mandatory terms with the word “Shall” being operative therein. This endorsement is a fundamental condition precedent to the issuance of the Writ of Summons required to be served out of jurisdiction of the issuing Court. Being so fundamental, its compliance is expected to be strictly carried out. Otherwise it is rendered incompetent, null and void. See N.E.P.A VS ONAH (1997) LPELR – 1959 (SC) where it was held at page 19:
“It is trite that where a defendant is out of jurisdiction no Writ for

service can be issued except with the leave of the Court. The issue of the Writ of Summons and the service of the same Writ on a defendant are conditions precedent to the exercise of a Court’s jurisdiction over a defendant.”
See also NWABUEZE & ANOR VS. JUSTICE OBI OKOYE (1988) 4 NWLR (PT. 91) 664 where the Writ of Summons was irregularly issued by reason of failure to comply with the mandatory provisions of Section 97 of the Sheriffs and Civil Process Act which governs service out of the jurisdiction, the Supreme Court, Per Agbaje J.S.C held:-
”As I have said, the issue of Writ of Summons and the service of the same Writ on a Defendant are conditions precedent for the exercise of a Court’s jurisdiction on the Defendant…”
The import of what I have been saying is that the issuance of the originating process in this case was in breach of the mandatory provisions of Section 97 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation of Nigeria 1990 and Order 3 Rule 9 of the Imo State High Court (Civil Procedure) Rules 2008, now Order 3 Rule 10 of the Imo State High Court (Civil Procedure) Rules 2017.

Having been issued in breach of these mandatory provisions, the Writ becomes incurably defective as it is null and void. I so hold thereby resolving this issue in favour of the Appellant.

ISSUE TWO:
“WHETHER THE PROCEEDINGS OF 27TH MARCH, 2017, 10TH MAY, 2017, 31ST MAY, 2017 AND 24TH JULY, 2017 WERE NOT CONDUCTED WITHOUT JURISDICTION, FAIR HEARING AND FAIR TRIAL.”

Having resolved issue one in favour of the Appellant to the effect that the Writ of Summons which gave spark to this action was incompetent, null and void, it goes without saying that all or any other steps taken in furtherance of the said Writ of Summons are equally incompetent and amount to a nullity. I therefore resolve this issue in favour of the Appellant and against the Respondent because no one can place a thing on nothing and expect it to stand.

ISSUE THREE:
“WHETHER THE FINDING OF FACTS MADE BE (sic) THE LEARNED TRIAL JUDGE IS NOT PERVERT (sic) AS TO ALLOW THIS HONOURABLE COURT TO SET SAME ASIDE.”

My resolution of issues one and two above has squarely taken care of this issue. I resolve same in favour of the Appellant. As a

matter of fact, the resolution of issue one has effectively determined this appeal. On the whole, this appeal has merit and same is hereby allowed by me. The decision of the Lower Court is hereby wholly set aside, the suit in the Court below is hereby struck out. Parties shall bear their cost.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I agree.

Appearances:

Tosin Samuel Alawode Esq. For Appellant(s)

Kissinger Ikeokwu Esq. For Respondent(s)