Ewinstel Nigeria Limited V. Etim Ibok Abia (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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: