EWINSTEL NIGERIA LIMITED v. ETIM IBOK ABIA
(2011)LCN/5047(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of June, 2011
CA/C/195/2007
RATIO
THE POSITION OF THE LAW ON THE SERVICE OF A PROCESS
The law is trite that the service of a process, more so, an originating process on a party, where it should be served, is one of the fundamental conditions precedent to the exercise of jurisdiction by a court. See Management Enterprises Limited v. Otusanya (1987) 2 NWLR (Pt. 55) 179. Thus, if service of a process is required and there is no proof that such service has been effected on the adverse party, any decision or judgment reached and or delivered from adjudication in such a proceeding is null and void. See obimonure v. Erionsho (1966) 1 All NLR 250; ITT (Nig.) Ltd. v. okpon (1989) 2 NWLR (pt. 103) 337. Indeed, the failure to serve requisite processes on an affected party is beyond a mere procedural irregularity, but a fundamental defect which calls to serious question and renders the entire proceedings a nullity. see Scott – Emuakpor v. ukavbe (1975) 12 SC 41/47; Odita v. Okwudinma (1969) 1 All NLR 228/231 – 232. This is more so, because there is a feature in the case which prevents the court from exercising its jurisdiction. Such a defect which borders on competence is fatal and the proceedings will be nullified no matter how well conducted and decided. It is extrinsic and skin deep to the adjudication process of the case, See Madukolu v. Nkemdilim (1963) 2 SCNLR 341. It is worth restating, that in skenconsult (Nig.) Ltd.. v. Ukey (1981) 1 sc 6, per Nnamani, JSC (of blessed memory) it was held thus:
“The service of process on the defendant so as to enable him appear to defend the relief being sought against him and appearance by the party or any counsel must be those fundamental conditions precedent required before the court can have competence and jurisdiction. This very well accords with the principles of natural justice.” PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (
THE POSITION OF THE LAW WHERE A COURT LACKS OR HAS LOST JURISDICTION OR COMPETENCE TO ENTERTAIN AN ACTION
Indeed, where a court lacks or has lost jurisdiction or competence to entertain an action or continue with the same, the parties to the suit or the court itself by acquiescence, waiver, silence or even agreement cannot confer jurisdiction or competence on the court. See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350/373. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (
THE POSITION OF THE LAW WHERE A PARTY COMPLAINS OF NON SERVICE IN A PROCEEDING
Indeed, where as in the instant case, an aggrieved party complains of non service, particularly an originating process, such a party is raising a fundamental issue which challenges the competence and jurisdiction of the court to entertain the matter, talk less of determining the same. Thus, where as in the instant case such a party establishes the non service in question complained of the entire proceedings become a nullity and either the trial court or an appellate court, is duty bound to set it aside. Failure to effect service where it is highly required is a fundamental vice of a monumental dimension or cataclysmic proportion, which will engender a destructive and devastating effect on the case, as it goes to the core of it. Indeed, it is the service of the process on the adverse party that confers the court with the competence and jurisdiction on the matter. Without it the court will be left stranded and floundering like a fish out of water. Where there is a disconnect or failure to serve a party who deserves to be served; the party concerned is entitled ex debito justitiae to have the order which emanated therefrom, to be set aside as a nullity. See Mbadinuju v. Ezuka (1994) 8 NWLR (pt. 364) 5; Mark v. Eke (2004) 5 NWLR (Pt. 865) 54; Ononye v. Chukwuma (2005) 17 NWLR (Pt. 953) 90. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (
THE DUTY OF THE COURT TO DO SUBSTANTIAL JUSTICE TO ALL THE PARTIES BEFORE IT AT ALL TIMES
A court is duty bound to do substantial justice to all the parties before it at all times and to further ensure that cases are decided basically and mostly on the merits. See I. M. N. L. v. oge (1996) 3 NWLR (Pt. 437) 422; Iwuoha v. Okoroike (1996) 2 NWLR (pt, 429) 231. Nevertheless, an adverse party requires adequate opportunity of being heard and not a diminished or reduced one. Such a party is duly entitled as of a right to what has been given to the other party or parties. Anything, which is short of the same yardstick of measure will be unfair and unacceptable, It is to be noted, that there is a whole lot of difference between an instance where a party is served with a defective writ which can be set aside with a timeously raised objection, before the party takes further steps or participation in the proceedings and a situation where a party has not been served at all with the originating processes or hearing notices, where such service is required by rules of court and established procedural practices. In the absence of such service, such a party will be unaware of the claims against it. After all, the main object of service of court processes is to notify the adverse party of the claims made against him or the position of such a claim which may have commenced. The party will then be in a vantage position to decide whether to & resist or submit to the claims made against him. See Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) 377. Hence, with due respect, I do not subscribe to the arguments advanced by the learned counsel for the respondent on this point, to the effect “that what happened in this case was a question of improper service and not non service.” Furthermore, “that improper service of writ is in law treated as an irregularity”, which can be waived, what happened in this case was one of non service. PER. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
Before Their Lordships
KUMAI BAYANG AKAAHSJustice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
EWINSTEL NIGERIA LIMITEDAppellant(s)
AND
ETIM IBOK ABIARespondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This appeal is brought by the then 2nd defendant at the trial court, against the judgment of A. E. Okon, J. of the Akwa Ibom State High Court, sitting at Eket Judicial Division and delivered on 31st January, 2006. In this matter, the respondent as the plaintiff in Suit No. HEK/122/2001 sued two defendants, namely; Mobil Producing Nigerian Unlimited and Ewinstel Nig. Ltd. jointly and severally before the said trial court. The plaintiff took out his writ of summons on 13th January, 2001 and filed his statement of claim on 1st March, 2002. In paragraph 19 thereof, he sought the following relief:
“WHEREOF the plaintiff claims against the defendants jointly and severally the sum of N8,630,000.00 being fair and adequate compensation for damages occasioned on the plaintiff’s property situate at and known as No. 1 Afaha Ekpenedi along Etebi Road, Esit Eket caused by the defendants’ Road construction activities along Ura Okok Afaha Ekpenedi Idung Assan Road.”
(P. 4 of the record)
   The 1st defendant filed its statement of defence on 23d July, 2002 with leave of the trial court sought and obtained on the same date and with further leave of the said court granted on 5th August, 2003, the 1st defendant filed its amended statement of defence.
(P. 7 of the record)
   With pleadings having been duly filed and exchanged between the plaintiff and the 1st defendant, hearing commenced in the suit on 24th February, 2003 before the trial court with only both parties therein participating thereat. The plaintiff testified as PW1 and called one additional witness. Various documents were tendered and admitted in evidence before the trial court by the plaintiff. The 1st defendant also, in its defence called one defence witness and tendered one documentary evidence. Upon the conclusion of hearing on 12th May, 2004, learned counsel for the parties, that is plaintiff and 1st defendant were ordered by the trial court to file their respective written addresses. The said written addresses were subsequently adopted and relied upon by the learned counsel for the parties on 23rd June, 2004 and the case was adjourned by the trial court to 11th August, 2004 for judgment.
   On 26th July, 2004, the 2nd defendant who had hitherto been missing/absent and who had not participated at all in the matter, suddenly surfaced when it filed a motion on notice, seeking inter alia, an order of the trial court, “arresting the judgment in the above suit.” The said motion on notice has an affidavit in support with exhibits annexed thereto. (P.31 of the record) The plaintiff in opposition filed a counter affidavit, sworn to on 21st October, 2004.
   Again, the 2nd defendant filed a further affidavit sworn to on 6th January, 2005 in response to plaintiffs counter affidavit. (Pp, 26 – 49 of the record) The motion on notice to arrest the trial court’s judgment was moved and argued on 16th February, 2005 with the arguments thereon, being finally concluded on 20th April, 2005. In his ruling which was delivered on 20th May, 2005, the learned trial judge found as a fact that both the writ of summons and statement of claim were not duly served on the 2nd defendant. He held the following viewpoint:
“I hold the view that they were not duly served on the applicant as required by  the rules of court. The applicant was entitled to notice of the suit and as it was not duly served with the originating processes in the action, the failure to so serve is a fundamental defect which goes to the root of the competence of jurisdiction of the court to deal with the action in relation to the applicant. See the cases of – Uwah Printers (Nig.) Ltd. v. Umoren (2000) 15 NWLR (Pt. 689) p. 78
Held 3 – Habib Nigeria Bank Ltd. v. Opomulere (2000) 15 NWLR (Pt. 690) P. 315 Held 5.” (P. 121 of the record)
He then added that:
“In a situation where there is only one defendant who has not been served with the originating processes, such a defendant would be entitled ex debito justitiae to have the proceedings or resultant judgment set aside as a nullity because due service of process is a condition sine qua non to the hearing of any suit. See the cases of – Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6 – Uwah Printers (Nig.) Ltd. v. Umoren (supra) Held 4.” (Pp. 121 & 122 of the record)
Howbeit, in the concluding portion of his ruling, the learned trial judge ordered:
“… that the judgment in the suit earlier fixed for 11/8/2004 having been overtaken by events shall no longer be delivered. The 2nd defendant is hereby let in to defend the suit on merit. It is ordered that time be and is hereby extended by 21 days to the 2nd defendant to formally enter appearance in the suit and file its statement of defence out of time and serve same on the other parties.” (P. 122 of the record)
   It is to be noted that in the course of the proceeding of 15th August, 2005, the learned counsel for the 2nd defendant, informed the trial court that they have filed their memorandum of appearance and statement of defence on 21st June, 2005. He then applied to the trial court; “that the matter be heard de novo to give the 2nd defendant opportunity to see and cross examine the witnesses who had earlier testified.”
   Learned counsel for the plaintiff opposed the application, on the ground that the trial court in its earlier ruling of 31st May, 2005, “did not set aside the proceeding, therefore, the issue of starting de novo did not arise.” The learned trial judge, having given due consideration to what learned counsel for the parties said, went ahead and delivered his ruling and stated thus:
“The 2nd defendant’s counsel is advised to obtain the proceedings in this case for her perusal. Thereafter, she will decide on how to go on. But it shall be necessary for the 2nd defendant or its witnesses to testify in defence and be cross examined.
   The plaintiff or his witnesses shall be presented to the 2nd defendant for cross – examination of the 2nd defendant … so wishes before its defence.” (pp. 123 & 124 of the record)
   Thereafter, the matter was adjourned to 21st November, 2005, for hearing with consent of the three learned counsel for the parties. On the said next adjournment date, the learned counsel for the 2nd defendant and the party were absent in court. Upon an application by the learned counsel for the plaintiff the matter was adjourned to 31st January, 2006 for judgment. The learned trial judge in his judgment delivered on the stated date found that, “the 1st defendant ought not to have been sued in this action.” He then ordered, “that the name of the 1st defendant be and is hereby struck out.” (P. 140 of the record) Eventually, he awarded the entire sum claimed by the plaintiff in the sum of N8,630,000.00 against the 2nd defendant alone. (P.143 of the record)
   On 26th April, 2006, the 2nd defendant being dissatisfied with the said decision, caused its notice of appeal containing one ground of appeal to be filed, challenging the said judgment. Henceforth, in this judgment, the 2nd defendant will be referred to as the appellant, while the plaintiff will be called the respondent.
   On 1st April, 2008, this Court granted leave to the appellant herein to file and argue five additional grounds of appeal and also extended time to the said date for the filing of appellant’s brief of argument. In the said brief of argument prepared by Z. O. E. Nwosu Jnr., five issues were distilled therefrom for determination in this appeal. The issues are reproduced below:
“(i) whether the lower court was right in continuing with the hearing and determination of the suit against the appellant when it had ruled that the appellant was not duly severed with both the writ and the statement of claim.(sic)
(ii) Did the proper service of both the writ and the statement of claim on the 1st defendant give the lower court the competence to continue with the hearing and determination of the suit against the appellant (2nd defendant) who was not duly served with any of the processes aforesaid.
(iii) Was the appellant’s right to fair hearing breached by the lower court’s continuance with the hearing and determination of the suit against it on the face of non service of both the writ and the statement of claim on it.
(iv) Does the mere fact that an action was not defended entitle the lower court in the absence of proof to believe the evidence of the respondent (plaintiff) in its entirety.
(v) Was the lower court right in awarding the sum of N8,630,000.00 as compensation due to the respondent for his damaged properties by the mere fact that the amount is consistent with the content of the Compensation Valuation Report without assessing the evidence before it and considering that the amount is excessive.”
   In the respondent’s brief of argument, prepared by Okon A. Okon Esq. and deemed duly and properly filed with leave of this Court granted on 9th July, 2009, two issues were formulated for resolution of this appeal. Both issues are:
“1. Whether the trial High Court was right, as it did to proceed to give judgment in this case after the appellant failed to utilize the opportunity to defend the action which the appellant had in the circumstances of this case.
2. Whether the Respondent was entitled to judgment in his favour as the trial High Court gave upon the totality of the evidence adduced in the trial High Court.”
   On the issues distilled in this appeal, the learned counsel for the appellant contended in the main, that having ruled that the requisite originating processes were not served on the appellant, that it was wrong for the trial court to continue with and determine the suit, since a condition precedent for the assumption of jurisdiction has not been met. Citing the authorities of Odutola v. Kayode (1994) 2 NWLR (Pt. 324) 1/15 & 22; Chevron Nig. Ltd. v. Warri North Local Government (2003) 5 NWLR (pt. 812) 28/43, it was thus submitted, that this fundamental defect renders the entire proceedings null and void. In another submission, he maintained that the appellant’s application to be let in to defend the suit, cannot confer competence or jurisdiction which is lacking on the trial court. Reliance was placed for this contention on Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350/373; Skenconsult Nig. Ltd. v. Ukey (1981) 1 sc 1/25; Mark v. Eke (2004) 5 NWLR (Pt. 865) 54/78. Furthermore, that the situation or position will remain the same, regardless of the fact that the hitherto 1st defendant before the trial court was duly served and participated fully in the course of proceedings before the trial court, from the commencement to the completion. Learned appellant’s counsel referred to the cases of Garba v. University of Maiduguri (1986) 1 All NLR (Pt. 1) 124/149, otapo v. sunmonu (1987) 2 NWLR (Pt.58) 587/604 & 624; U. B. A. v. Contract Resources Ltd. (2004) 5 NWLR (pt, 867) 468/496 and Federal civil service commission v. Laoye (1989) 2 NWLR (pt. 106) 652/669, with the submission that appellant’s right to fair hearing has been breached, more so, when it was not given adequate opportunity to defend the suit. Thus, according, to learned appellant’s counsel, the judgment of the trial court was given in breach of rules of natural justice.
   Again, learned counsel for the appellant conducted a detailed exposition into the evidence adduced before the trial court – both oral and documentary, with copious references to the record of appeal. It was his argument in the main, that the evidence adduced by the respondent before the trial court, cannot sustain the verdict thereon as delivered by the said trial court. We were referred to Omoregie v. Omigie (1990) 2 NWLR (Pt. 130) 29 /39; Incar (Nig.) Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453; Attorney General, Oyo State v. Fairlakes Hotels (No.2) (1989) 5 NWLR (Pt. 121) 255/292 and Sommer v. Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548/562 as authorities for the submissions made in this regard. It was finally submitted, that the respondent did not discharge the burden of proof placed on him, with regard to his claim for payment of compensation and the award of the same in its entirety by the trial court. We were urged in conclusion to allow the appeal, set aside the trial court’s judgment and order a fresh trial in the suit.
   For the respondent and in reply to the arguments canvassed by the appellant’s counsel, the learned counsel for the respondent submitted, ” that the trial High Court was right in the peculiar circumstances of this case to proceed to judgment against the appellant notwithstanding that the court in its interlocutory ruling in the matter had faulted the service of the writ of summons and the statement of claim on the appellant.” It was added that the appellant having been ordered to file memorandum of appearance and statement of defence and having done so, that “it is now too late to raise any issue relating to service of writ.” According to the learned respondent’s counsel, this is more so, since the appellant, “never sought to set aside the writ.” Hence, the appellant must be deemed to have waived the issue of non service and or irregular service of the writ of summons. The decided authorities of Agbonran II & ors. v. Ayodele (2002) FWLR (pt. 86) 522/536 – 537; olagunju v. owena Bank of Nig. plc. (2002) FWLR (Pt. 124) 529/574 – 575 and Kisari Investment Ltd.. v. La Terminal co. Ltd. (2001) FWLR (pt. 66) 766/785 were cited in support of the submissions being made. It was further contended that, “failure to serve a writ (as required by court rules) is an irregularity and not an illegality.” Reference was made on this point to Job charles (Nig.) & ors v. okonkwo (2002) FWLR (Pt.117) 1067/1077 – 1078; Ames Electrical co. Ltd. v. Federal Airports Authority of Nigeria (2002) FWLR (pt. 116) 827/836. In furtherance of his response, the learned counsel for the respondent maintained that the appellant,” had the opportunity of being heard but failed to utilize the same by deliberately staying away from court without any lawful excuse” and as such the appellant is deemed to have waived his right to be heard in the matter and thus cannot be heard to complain afterwards of any denial of fair hearing, having failed to utilize the given opportunity. Reference was made to the following cases: Ibrahim v. N. U. B. Ltd. (2002) FWLR (Pt. 119) 1512/1520; Agbogu v. Adiche (2002) FWLR (Pt. 127) 1202/1216; Denca Services Ltd. v. Cross Marine services Ltd. (2002) FWLR (pt. 86) 490/509 and Somai Sonka v. Adezege (2001) FWLR (pt. 68) 1104/1121.
   On the arguments advanced on the onus of proof and discharge of the same by learned appellant’s counsel, it was the counter submission of the learned counsel for the respondent, that “the failure of the appellant to adduce evidence at the trial in rebuttal of the respondent’s evidence left the evidence as adduced by the respondent unchallenged and uncontroverted and the appellant in law is deemed to have admitted the facts pleaded in the statement of claim as led in evidence.” Thus, according to him, the trial court can safely act on such unchallenged evidence. Reliance was placed on the cases of International Construction co. Ltd. v. Giwa (2002) FWLR (Pt. 107) 1312/1354, Mohammed v. D.H. L. International Nig. Ltd. (2001) FWLR (pt. 38) 1312/1323 1326; I. B. W. A. v. Imano Nig. Ltd. (2001) FWLR (pt. 75) 483/510. It was also contended, that what is either admitted or deemed admitted, need no further proof. He cited the case of chindo worldwide Ltd. v. Total Nig. plc. (2002) FWLR (pt. 115) 750/775 in support.
   We were urged in conclusion to resolve the issues as argued in favour of the respondent, dismiss the appeal and not interfere with or reverse the findings and decision of the trial court thereon. He called in aid, the cases of Dike v. Okonkwo (2008) All FWLR (pt. 404) 1571/1582 and Ishola v. U. B. N. Ltd. (zoos) All FWLR (pt. 256) 1202/1216.
   One issue which is somewhat common and central to both briefs is the issue as to the propriety or otherwise of the trial court, proceeding with the hearing in the suit as if nothing fundamentally untoward had happened, having found that the appellant was not duly served with the originating process filed in the matter. Put differently, the issue is, whether having regard to the entire proceedings before the trial court, it can be rightly said, that the appellant was afforded or accorded a fair hearing before the said court. To my mind, being jurisdictional and a threshold issue, the resolution of this issue, one way or the other will pave the way forward with regard to whether or not, further considerations will be given to the remaining issues. I will therefore commence with it.
   The law is trite that the service of a process, more so, an originating process on a party, where it should be served, is one of the fundamental conditions precedent to the exercise of jurisdiction by a court. See Management Enterprises Limited v. Otusanya (1987) 2 NWLR (Pt. 55) 179. Thus, if service of a process is required and there is no proof that such service has been effected on the adverse party, any decision or judgment reached and or delivered from adjudication in such a proceeding is null and void. See obimonure v. Erionsho (1966) 1 All NLR 250; ITT (Nig.) Ltd. v. okpon (1989) 2 NWLR (pt. 103) 337. Indeed, the failure to serve requisite processes on an affected party is beyond a mere procedural irregularity, but a fundamental defect which calls to serious question and renders the entire proceedings a nullity. see Scott – Emuakpor v. ukavbe (1975) 12 SC 41/47; Odita v.  Okwudinma (1969) 1 All NLR 228/231 – 232.
   This is more so, because there is a feature in the case which prevents the court from exercising its jurisdiction. Such a defect which borders on competence is fatal and the proceedings will be nullified no matter how well conducted and decided. It is extrinsic and skin deep to the adjudication process of the case, See Madukolu v. Nkemdilim (1963) 2 SCNLR 341.
It is worth restating, that in skenconsult (Nig.) Ltd.. v. Ukey (1981) 1 sc 6, per Nnamani, JSC (of blessed memory) it was held thus:
“The service of process on the defendant so as to enable him appear to defend the relief being sought against him and appearance by the party or any counsel must be those fundamental conditions precedent required before the court can have competence and jurisdiction. This very well accords with the principles of natural justice.”
   In the instant case, ordering the appellant to join in, jump on board and catch the train of adjudication which at that stage of the proceeding is already approaching its destination, cannot be equated with the provision of a level playing ground, regardless of whether or not the appellant asked for such a course of action.
   Indeed, where a court lacks or has lost jurisdiction or competence to entertain an action or continue with the same, the parties to the suit or the court itself by acquiescence, waiver, silence or even agreement cannot confer jurisdiction or competence on the court. See Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350/373.
   In the instant case, since all that has happened in so far as the appellant herein is concerned is null and void, there and then the parties ought to have been ordered back to the starting block for the race to commence all over again. By so doing, no party will be seen as having been given an undue advantage at the expense of the other who will now feel that he has been given a raw deal. A flawed process is a defective one. A null and void proceeding is cancerous and nobody grafts a healthy body tissue on a cancerous one. The latter must be removed completely for the former to have a fair fighting chance of re – growth and survival; otherwise it will turn out to be a clear cut case of labour lost.
   The fundamental nature of jurisdiction is such that it could be raised at any point in time or stage of the proceeding, either by the parties or suo motu by the court or even at the appellate court level. It has been held thus:
“A court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so on its own initiative, even though the parties have consented to the irregularity “mere acquiescence does not give jurisdiction.”
see westminster Bank Ltd. v. Edwards (1942) AC 529/536; (1942) 1 All ER 470/477 -Â Â quoted with approval by the supreme court in skenconsult (wig.) Ltd. v. Ukey (supra).
   The importance and crucial nature of jurisdiction cannot be over emphasized or underestimated. It is thus well settled that where a court has been shown not to have jurisdiction to entertain or continue with and determine a matter before it, the end result will be that no matter how well and brilliantly conducted, the proceedings are null and void ab initio and any decision arrived thereat is of no effect whatsoever. See Matari v. Dangaladima (1993) 3 NWLR (pt. 281) 266.
   Indeed, where as in the instant case, an aggrieved party complains of non service, particularly an originating process, such a party is raising a fundamental issue which challenges the competence and jurisdiction of the court to entertain the matter, talk less of determining the same. Thus, where as in the instant case such a party establishes the non service in question complained of the entire proceedings become a nullity and either the trial court or an appellate court, is duty bound to set it aside. Failure to effect service where it is highly required is a fundamental vice of a monumental dimension or cataclysmic proportion, which will engender a destructive and devastating effect on the case, as it goes to the core of it. Indeed, it is the service of the process on the adverse party that confers the court with the competence and jurisdiction on the matter. Without it the court will be left stranded and floundering like a fish out of water. Where there is a disconnect or failure to serve a party who deserves to be served; the party concerned is entitled ex debito justitiae to have the order which emanated therefrom, to be set aside as a nullity. See Mbadinuju v. Ezuka (1994) 8 NWLR (pt. 364) 5; Mark v. Eke (2004) 5 NWLR (Pt. 865) 54; Ononye v. Chukwuma (2005) 17 NWLR (Pt. 953) 90.
   Let it be restated for emphasis and its importance, that the issue of competence which borders on jurisdiction is threshold and fundamental. In Attorney General of Lagos state V. Dosunmu (1989) 3 NWLR (pt. 11) 552/609, Eso, JSC, in his contribution to the lead judgment pronounced thus:
“It is futile to set down issues, deliberate on evidence led, resolve points of law raised, if the court that is seized of the matter is devoid of jurisdiction. The substratum of a court is not doubt jurisdiction. Without it the “labourers”  therein, that is both litigants and counsel on the one hand and the Judge on the other hand, labour in vain.”
(Emphasis added)
   A court is duty bound to do substantial justice to all the parties before it at all times and to further ensure that cases are decided basically and mostly on the merits. See I. M. N. L. v. oge (1996) 3 NWLR (Pt. 437) 422; Iwuoha v. Okoroike (1996) 2 NWLR (pt, 429) 231. Nevertheless, an adverse party requires adequate opportunity of being heard and not a diminished or reduced one. Such a party is duly entitled as of a right to what has been given to the other party or parties. Anything, which is short of the same yardstick of measure will be unfair and unacceptable.
  It is to be noted, that there is a whole lot of difference between an instance where a party is served with a defective writ which can be set aside with a timeously raised objection, before the party takes further steps or participation in the proceedings and a situation where a party has not been served at all with the originating processes or hearing notices, where such service is required by rules of court and established procedural practices. In the absence of such service, such a party will be unaware of the claims against it. After all, the main object of service of court processes is to notify the adverse party of the claims made against him or the position of such a claim which may have commenced. The party will then be in a vantage position to decide whether to & resist or submit to the claims made against him. See Kida v. Ogunmola (2006) 13 NWLR (Pt. 997) 377. Hence, with due respect, I do not subscribe to the arguments advanced by the learned counsel for the respondent on this point, to the effect “that what happened in this case was a question of improper service and not non service.” Furthermore, “that improper service of writ is in law treated as an irregularity”, which can be waived, what happened in this case was one of non service.
   I am of the mindset that the true import of the trial court’s ruling on failure to comply with relevant rules of court with regard to service of originating process, really means that the ball game has to start all over again and from the beginning – no half way measure whatsoever. Hence, where an appellate court as in the instant case is satisfied that a lower court which tried a matter lacked jurisdiction to do so or has lost the same, the appellate court is entitled and duty bound to intervene and do the needful. Being bound, guided and persuaded by the authorities referred to above, the first issue raised herein, is resolved in favour of the appellant and against the respondent. Having done this, I do not conceive any valid reasons to consider the remaining issues raised in this appeal. This is more so, because doing so, can be likened to an exercise in futility. Courts have been strongly advised, not to embark on an academic exercise or deliberate on issues which are bereft of beneficial results to the parties.
   For all the reasons given above and more, I am of the firm viewpoint that this appeal deserves to succeed. It is accordingly allowed by me. The judgment of A. E. Okon, J., delivered in Suit No. HEK/122/2001, on 31st January, 2006 is hereby set aside. It is further ordered that the case be remitted to the Chief Judge, Akwa Ibom State of Nigeria, for reassignment to another Judge of the High Court other than Okon, J. I make no order regarding costs.
KUMAI BAYANG AKAAHS, J.C.A.: We agreed in conference that this appeal should be allowed because the appellant was not given fair hearing. It was clear to the learned trial Judge that the appellant was not aware that a case had been instituted against it until the 1st Defendant drew the Appellant’s attention to it when the trial Judge was about to deliver judgment. It was at this stage that the Appellant filed the application to arrest the judgment and to be let in to defend the action. Since it was clear that the appellant was not served with the writ of summons, the appellant was right in bringing the application to set aside the proceedings already commenced and to start the case afresh. The order by the learned trial Judge that the appellant should request for the records and study them with a view to cross-examining the witness who had testified could not meet the standard of fair trial particularly when the registry of the court did not immediately make available the records to Appellant’s counsel. By striking out the 1st Defendant’s name from the suit and entering judgment for the entire amount in favour of the Respondent, the learned trial Judge administered cloistered justice to the appellant. In consequence I declare the judgment of okon J. delivered on 31/1/2006 in suit No. HEK/122/2001 null and void since it occasioned miscarriage of justice and it is hereby set aside. I abide by the orders made in the lead judgment of my learned brother.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Massoud Abdulrahman Oredola JCA, gave me the privilege of reading the draft of his lead judgment just delivered. My learned brother, has thoroughly treated the issues in the appeal and I agree with his reasoning and conclusion that the appeal being meritorious deserves to succeed. I too allow the appeal and abide by the consequential orders therein. I make no order as to costs.
Appearances
Z. O. E. NWOSU JNR.For Appellant
AND
CHIDI ANYANWU ESQ.For Respondent
