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SERVICE OF ORIGINATING PROCESS ON OTHER PARTY IS JURISDICTIONAL

Dictum

Undoubtedly, the essence of service of originating processes upon a party, a defendant or Respondent as the case may be in administration of justice, cannot be over emphasized. Indeed, the service of origination process on a party is not merely important but fundamental. Indeed, it goes very deeply to the root of the Jurisdictional competence of the Court to adjudicate upon the matter. Thus, failure to serve the adverse party with the necessary originating process invariably renders the proceedings by the Court and any orders predicated thereupon, nullities.

– I.M.M. Saulawa JCA. Owhor v. Obodo (2020) – CA/PH/448/2017

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INEFFECTIVE SERVICE VITIATES COURT’S JURISDICTION

In effect, it, [that is, ineffective service], is a fundamental vice that vitiates the exercise of the jurisdiction and competence of the Court. It is beyond what can be waived for it is a condition precedent to the invocation of the Court’s jurisdiction.

– C.C. Nweze JSC. Odey v. Alaga (2021) – SC.9/2021

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STRAINING THE RULE ON PROOF OF SERVICE

The correct position of the law has repeatedly been stated by this court that it is straining the rule on proof of service to say that a defendant who filed a defence to the statement of claim was not served the writ of summons because there was no bailiff’s endorsement on the writ. See: Okesuyi v. Lawal (1991) 1 NWLR (Pt.176) 661, per Olatawura, JSC (of blessed memory).

— T. Muhammad, JSC. VAB Petroleum v. Momah (2013) – SC.99/2004

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PROOF OF DELIVERY OF DOCUMENT

Agbaje v. Fashola (2008) 6 NWLR (Pt. 1082) 90 at 142. “Where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by: (a) dispatch book indicating receipt; or (b) evidence of dispatch by registered post; or (c) evidence of witness, credible enough that the person was served with the document.”

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PERSONAL SERVICE OF AN ORIGINATING PROCESS IS FUNDAMENTAL

The law is well settled that personal service of an originating process on a party to a proceeding is fundamental. It is service that confers jurisdiction on the Court seised of the matter. Where there is failure to serve a process where service is required, the person entitled to be served but not so serviced, is entitled, ex debito justicae to have it set aside.

– A. Aboki JSC. Odey v. Alaga (2021) – SC.9/2021

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EVADING COURT PROCESSES TO CONTINUE WITH BUILDING RES

In Von Joel v. Hornsey (1895) 2 Ch 774 – C.A. In that case, the evidence showed that the defendant had repeatedly evaded attempts to serve him with process, and in the meantime had gone on with the building. Again without regard to the ultimate rights of the parties, the court directed the defendant to pull down that part of the building thus erected.

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SERVICE OF PROCESS SHOULD BE DONE IN THE RIGHT MANNER

Put in another way, service is a precondition to the exercise of jurisdiction by the Courts. Where there is no service or there is a procedural fault in service in subsequent proceedings are a nullity ab initio. This is based on the principle of law that a party should know or be aware that there is a suit against him so that he can put up a defence. If after service, he does not put up a defence the law will assume and rightly too for that matter that he had no defence. Failure to serve process where service is required in a particular manner is a fundamental vice. It deprives the Court of the necessary competence and jurisdiction to hear the suit. That is to say, that the condition precedent to the exercise of jurisdiction was not fulfilled.

– S.C. OSEJI, J.S.C. Odey v. Alaga (2021) – SC.9/2021

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