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THE FUNDAMENTAL IMPORTANCE OF SERVICE OF COURT PROCESSES; SUBSTITUTED SERVICE; SERVICE OUTSIDE JURISDICTION

Dictum

In Mohammed Mari Kida vs. A.D. Ogunmola (2006) All FWLR (Pt. 327) 402 (2006) 6 SCNJ 165 the suit was instituted at the High Court of Justice, Maiduguri, Bornu State. At time of instituting the suit the claimant gave the appellant’s residential address within jurisdiction as No. 4 Ahmadu Bello Close, Damboa Road, GRA, Maiduguri, Borno State. But at that time the appellant had relocated with his family to Ibadan, Oyo State. The claimant applied for leave to serve the writ of summons on the appellant out of jurisdiction and the Court granted leave for that purpose. But the bailiffs effected service by pasting the processes at No. 4A Ahmadu Bello Close, Damboa Road, GRA Maidudguri, Bornu State within jurisdiction. The Supreme Court held at page 411 to page 414 per Musdapher, JSC (as he then was) as follows: “Now, the appellant applied to issue and serve the writ on the respondent outside the jurisdiction of the Court and yet the appellant was served by substituted means, by pasting the originating processes on the last known abode of the appellant within jurisdiction, when it was manifestly clear that the respondent was no longer resident there or within the jurisdiction of the Court. For a defendant to be legally bound to respond to the order for him to appear in Court to answer a claim of the plaintiff, he must be resident within jurisdiction, see National Bank (Nig.) Ltd. vs. John Akinkunmi Shoyoye and Anor. (1977) 5 SC 181. Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the Court for example when the defendant cannot be traced or when it is known that the defendant is evading service. Also, where at the time of the issuance of the writ, personal service could not in law be effected on a defendant, who is outside the jurisdiction of the Court, substituted service should not be ordered, see Fry vs. Moore (1889) 23 QBD 395. If the defendant is outside the jurisdiction of the Court at the time of the issue of the writ and consequently could not have been personally served in law, not being amenable to that writ, an order for substituted service cannot be made, see Wilding vs. Bean (1981) 2 QB 100. In the instant case, the respondent was known to be out of jurisdiction, and it is not in dispute that the respondent had moved out of Maiduguri to Ibadan, where he had relocated with his family long before the issue of the writ of summons. It is trite law, that after its issue, a writ of summons or any originating process must be properly served on the defendant. Without such service, he may not know that he has been sued. He may not know the claims against him. The object of the service is therefore to give notice to the defendant of the claims against him, so that he may be aware of, and be able to resist, if he desires to, that which is claimed against him. Where service of a process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity. See Obimonure vs. Erinosho (1966) 1 All NLR 250; Mbadinuju vs. Ezuka (1994) 10 SCNJ 109; Skenconsult (Nig.) Ltd. vs. Ukey (1981) 1 SC 6; Adeigbe vs. Kusimo (1965) NMLR 284. Service of the originating process has been held to be a condition precedent to the exercise of jurisdiction by the Court out of whose registry the originating process was issued. See N.B.N. Ltd. vs. Guthrie (Nig.) Ltd. (1993) 4 SCNJ 1 at 17. The validity of the issue of the writ and the service of the Court on the respondent was raised before the trial Judge and the learned trial Judge in his ruling on this issue… Thus, the trial Court disregarded the complaint of the respondent on the validity of the issue and service on him of the processes. The Court of Appeal rightly in my view, held that the trial Judge acted erroneously to have discountenanced the argument of the Counsel for the respondent on this issue. In my view, the validity of the originating processes in a proceeding before a Court, is fundamental, as the competence of the proceeding is a condition sine qua non to the legitimacy of any suit. Therefore, the failure to commence proceedings with a valid writ of summons goes to the root of the case and any order emanating from such proceedings is liable to be set aside as incompetent and a nullity. It clearly borders on the issue of jurisdiction and the competence of the Court to adjudicate on the matter. Such issue can be raised at any time and it can never be alien to the proceedings as claimed by the learned trial Judge. However, of more fundamental nature, the respondent who was outside jurisdiction, claimed to be unaware of the suit as he was not served with the originating process outside the jurisdiction of the Borno State High Court as properly ordered by the Court. He was allegedly served by substituted means. As shown above, that was no service. As mentioned before in this judgment, service of process on a party to a proceeding is crucial and fundamental. See Auto Import Export vs. Adebayo (2002) 18 NWLR (Pt.799) 554, (2003) FWLR (Pt.140) 1686; S.G.B. Ltd. vs. Adewunmi (2003) FWLR (Pt.158) 1181, (2003) 10 NWLR (Pt.829) 526; Mbadinuju vs. Ezuka (1994) 8 NWLR (Pt.364) 535. Failure to serve process where service of process is required is a fundamental vice. It deprives the trial Court of the necessary competence and jurisdiction to hear the suit. In other words, the condition precedent to the exercise of jurisdiction was not fulfilled. That being so, the trial Court, in the instant case has no jurisdiction to hear the appellant’s application and enter judgment against the respondent in default of filing statement of defence. The proceedings as far as it affected the respondent on the 24/12/1996 was a nullity. See also Scott-Emuakpor vs. Ukavbe (1975) 12 SC 41. See UBN Plc vs. Okonkwo (2004) 5 NWLR (Pt. 867) 445. Confining myself to the fundamental issue of service in this matter, I need not even consider the argument of Counsel since where there is no service, there is no valid trial. It was manifest and common ground that the respondent was known to be out of jurisdiction…”

This dictum was relied upon in Abacha v Kurastic [2014] – CA/A/406/2010.

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SERVICE OF PROCESS IS FUNDAMENTAL AND FAILURE VITIATES

In SGBN LTD VS ADEWUNMI (2003) LPELR 3081 (SC); (2003) 10 NWLR (PT 829) 526, this Court restated its concern thus: At page 539. “Service of process on a party to a proceeding is fundamental. It is service that confers competence and jurisdiction on the Court seized of the matter. Clearly, due service of process of Court is a condition sine qua non to the hearing of any suit. Therefore, if there is a failure to serve process where service of process is required, the person affected by the order but not served with the process is entitled ex-debito justitiae to have the order set aside as a nullity.”

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SERVICE OF PROCESS

Again and strictly speaking, the issuing of civil process (here Writ of Summons) should be the concern of the High Court Law and the High Court Rules while the Service of such process will be referable to “the Law made for the Service of civil process of the Courts” – the Sheriffs and Civil Process Act Cap 189 of 1958. The reality of the present position is that the High Court of Lagos (Civil Procedure) Rules not only made provision for Service but also incorporated by direct reference, the Sheriffs and Civil Process Act.

– Oputa, JSC. Adegoke v. Adesanya (1989)

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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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NON-SERVICE VITIATES ENTIRE PROCEEDINGS

Service of an originating process, such as the writ of summons, originating summons, notice of appeal, etc, is fundamental and goes to the root of the competence of the Court to adjudicate. Where an originating process has not been served on the adverse party, the non-service vitiates the entire proceedings and any orders made therein. The premise for this proposition is that a party to a proceeding should know or be aware that there is a case against him in order to afford him adequate opportunity to defend himself if he desires to do so.

– 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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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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