“In Other Words, Due Service Of The Process Of The Court, Is A Condition Precedent To The Hearing Of The Suit. Where, As In This Case, As The First To The Fifth Respondents Were Not Served With The Originating Process, That Is, The Writ Of Summons, They Were Entitled Ex Debito Justitiae, To Have The Trial Court’s Judgement, Set Aside As A Nullity”
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 9th day of March, 2018
Before Their Lordships
Musa Dattijo Muhammad
John Inyang Okoro
Chima Centus Nweze
Amina Adamu Augie
Supreme Court SC.298/2007
Uba Okeke ………Appellant
Tijani Lawal & 4 Others…..Respondent
(Lead Judgement delivered by Hon. Chima Centus Nweze, JSC)
The Appellant as the Plaintiff, filed an action against the Respondents at the High Court of Bendel State, Warri Judicial Division, claiming special and general damages, for assault and battery committed against the Appellant. He alleged that the tortious acts of the Respondents, led to the permanent loss of his eye and caused him persistent and severe excruciating pains.
Despite several attempts at serving the initiating processes on the Respondents, the Appellant was not successful at serving them, and the matter proceeded to trial during which the matter was adjourned about seven times. Neither the Respondents nor their counsel was present in Court on any of these days, and no hearing notice was ordered to be issued to them.
Thereafter, learned Counsel for the Appellant addressed the trial Judge, who subsequently entered judgement in favour of the Appellant. Sequel to the judgement of the trial Court, the Respondents appealed to the Court of Appeal.
The Court of Appeal allowed their appeal, and set the judgement of the trial Court aside. The Appellant being dissatisfied with the judgement of the Court of Appeal, lodged an appeal at the Supreme Court.
Issues for Determination
The Appellant formulated two issues for determination, as follows:
1. Whether it is not a miscarriage of justice, for the Court of Appeal to suo motu raise the issue of non-service to the Respondents and non- compliance with Section 97 of the Sheriff and Civil Process Act by the Appellant, and make pronouncement on the issues raised without hearing both the Appellant and Respondents on the issues so raised?
2. Whether indeed, there is nothing on record to satisfy the Court that the first to fifth Respondents were served with any process of Court, as wrongly held by the Court of Appeal? The Respondents on the other hand formulated one issue as follows: Whether the Court of Appeal was right, in coming to the conclusion that, from the totality of the facts and record before it, there was no service of the originating processes on the Respondents by the Appellant, as required by law before the commencement of trial? The Court was of the view that, the sole issue formulated by the Respondent, captured the grievance of the Appellant and thus, adopted the Respondents’ sole issue for the determination of the appeal.
On the main question of service of the originating processes on the Respondents, Counsel for the Appellant contended that efforts were made to serve the Respondents personally with the relevant processes, and they were however, served by substituted means. He referred to an Order for substituted service, which he alleged was made by the trial Court on 27th April, 1990, and argued that the Respondents did not place any material before the Court of Appeal, to suggest that the said Order for substituted service was not carried out. Counsel for the Appellant also canvassed the argument that, service by prepaid registered post as contained in the said Order, was envisaged under the Bendel State High Court (Civil Procedure) Rules. He cited U.N.P LTD AND ANOR. v ADEBANJO (1967) 1 ANLR 431, 432. He submitted that, there was therefore, a rebuttable presumption of regularity of the Writ and other processes, and urged the Court to hold that there was effective and proper service of the Writ of Summons and other processes on the Respondents, prior to the commencement of trial.
Counsel for the Respondents, pointed out the address of the Respondents as endorsed on the Writ of Summons, as “The Naval Base, Warri”. He explained that due to the inability to effect personal service on the Respondents, the Appellant had filed an application dated 19th February, 1990 for the delivery of the processes to the Commanding Officer of the NNS Umalokun Naval Base by the pre-paid registered post, for onward transmission to the Respondents. Counsel for the Respondents also drew the attention of the Court to another application in the record dated 19th February, 1990, by which the Appellant sought an order for substituted service of the Originating process on the Respondents, by delivery at the Naval Base, Apapa Lagos.
He stated that, the only ruling of the trial Court as regards substituted service, was delivered on 2nd March, 1990 and in the said ruling, the trial Court granted leave to the Appellant to serve the Respondents at the Naval Base Apapa, Lagos. He pointed out that as the Bailiff could not locate the sixth Defendant at the Naval Base, Apapa, Lagos, he did not effect service.
Counsel for the Respondent argued that, thereafter, no further motion for substituted service was filed, neither was there any affidavit or proof of service. He also noted that there was nothing evidencing the further Order for substituted service purportedly made by the trial Court on 27th April, 1990, or the motion upon which same was predicated. He further canvassed the view that pre- paid registered post, was unknown to the applicable Rules of Court.
Court’s Judgement and Rationale
Deciding the issue, the Court held that the failure to serve a Court process, where the service of such a process is required, is a fundamental defect which goes to the root of the case, and such failure, renders any order made against the party who should have been served with the process, null and void. The Court relied on CRAIG v KANSSEB (1943) KB 256 at 262; (1943) 1 ALL ER 108,113.
The Court held that the rationale behind this is that, it is the service of the process of the Court on the Defendant that confers the competence and jurisdiction to adjudicate on the matter on the Court, and due service of the process of the Court, is a condition precedent to the hearing of a suit.
The Court agreed with the finding of the Court of Appeal, that regarding the Appellant’s first motion ex-parte for substituted service dated 19th February, 1990 for the delivery of the processes to the Commanding Officer of the NNS Umalokun Naval Base by the pre-paid registered post for onward transmission to the Respondents, there was nothing on record indicating that the said motion was granted, and although the second application dated 19th February, 1990, for substituted service of the Originating process on the Respondents by delivery at the Naval Base, Apapa Lagos was granted by the trial Court on 2nd March, 1990, there was nothing in the record to show that the service of the processes were effected in accordance with the leave of court granted on that date. The Supreme Court held further that, there was in fact nothing on record, to show that the Respondents were ever served with the originating process or any other process in the suit, either personally or by substituted means.
The Supreme Court opined that, in view of the fact that the Respondents were not served with the originating process, they were entitled ex debito justitiae, to have the trial Court’s judgement set aside as a nullity, as the failure to serve the originating process on the Respondents was not just a mere irregularity, but a fundamental defect which rendered the entire proceedings a nullity.
It is a nullity, because the service of the originating process is a sine qua non to the exercise of any jurisdiction on the Defendant, and since there was no service on them, the fundamental rule of natural justice audi alteram partem, was breached when the trial Court proceeded to enter judgement against them. In effect, the judgement having been given without jurisdiction, is null and void. The Court relied on MBADINUJU v EZUKA (1994) 8 NWLR (PT. 364) 5; MARK & ANOR. v EKE (2004) LPELR-1841 (SC) 25-26; OBIMONURE v ERINOSHO (1966) 1 ALL NLR 250, 252; SCOTT–EMUAKPOR v UKAVBE (1975) 12 SC 41, 47; ODITA v OKWUDINMA (1969) 1 ALL NLR 228; SKEN CONSULT (NIG.) LTD v UKEY (1981) 1 SC 6, 26; (1981) 1 SC (REPRINT) 4, to hold that failure to give notice of proceedings to the opposing party, where the service is required, such that occurred in the instant case, is a fundamental omission. The lapse being fatal, renders the entire proceedings void. Non-service of initiating process, disentitles the court from assuming jurisdiction, and where it does without the service of the notice on the opposing party, the entire proceedings including the decision of Court, shall be set aside on the application of the disadvantaged party.
Appeal Dismissed. Case remitted to the trial Court for trial de novo before another Judge, after proper service has been effected.
Victor U. Okpara Esq. with Sunday N. Ezema Esq. and Khoni Bobai Esq., for the Appellant. S.M. Abdullahi Esq., with Elvis Ejeta Esq., and Azeez Olasupo Esq. for the Respondents.
Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))