ALHAJI ABDULKARDIR ABACHA v. KURASTIC NIGERIA LIMITED
(2014) LCN/7027(CA)
RATIO
PRACTICE AND PROCEDURE: WHERE FAILURE TO SERVE ORIGINATING PROCESS WOULD INVALIDATE THE JURISDICTION OF THE COURT
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…”
Courts exercise jurisdiction over persons who are within its territorial jurisdiction: Nwabueze vs. Obi-Okoye (1988) 10-11 SCNJ 60 at 73; Onyema vs. Oputa (1987) 18 NSCC (Pt. 2) 900; Ndaeyo vs. Ogunnaya (1977) 1 SC 11. Since the respondent was fully aware that before the issuance of the writ the appellant’s abode or residence for the past one year was no longer at No.189, Off R.B. Dikko Road, Asokoro, Abuja within jurisdiction, substituted service of the processes should not have been ordered by the learned trial Judge. In United Nigeria Press Ltd. & Anor. vs. Timothy Olu Adebanjo (1969) 1 All NLR (Vol.1) 431, Fatayi-Williams, JSC (as he then was) explained the purport of service of process as follows:
“In this application made exparte, the appellant who is the respondent in this appeal is applying for an order that all the papers pertaining to an earlier application for the release to him of the judgment debt already paid into Court by the first appellant and all other processes issued in the matter be served on both appellants by pasting them on the door of their business premises at No. 13, City Way, Yaba.
The applicant swore to an affidavit in support of the application the relevant particulars of which are as follows: Although the last known address of the appellants is No. 13 City Way, Yaba, neither of them was found at the said address when the applicant tried on several occasions to serve them with the motion papers pertaining to his earlier application for the release of the said judgment debt. As No. 13, City Way, Yaba, is, according to the “Companies Registry” in Lagos, the last registered address of the first appellant’s office, the motion papers for the release of the money, if pasted on the door of this last registered address, might get to the knowledge or hearing of the appellants. The affidavit, significantly enough, was silent about the last known address of Mr. Smart Ebbi, the second appellant. In our opinion, the object of all types of service of processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of, and able to resist, if he may, that which is sought against him. Therefore, since the primary consideration in an application for substituted service is as to how the matter can be best brought to the attention of the other party concerned, the Court must be satisfied that the mode of service proposed would probably, after all practicable means of effecting personal service have proved abortive, give him notice of the process concerned. In the present application all that is disclosed in the affidavit in support is that the appellants could not be found at their registered address and that if the motion papers are pasted on the door of this address notice of them might get to the knowledge of the appellants.”
The proceedings in the lower Court were commenced with an invalid writ of summons hence the delivery of the processes to Musa Ishaya was a nullity. The trial Court lacked the jurisdiction to hear the substantive suit and to enter judgment against the appellant. When a writ and service are nullities, the Court lacks the jurisdiction to make any competent pronouncements. This is because jurisdiction must be vested in a Court before the rights of a party can be determined. See Kalu vs. Odili (1992) 6 SCNJ (Pt. 1) 76 at 90. I resolve issues 1 and 2 in the favour of the appellant. I resolve issues 1 and 2 in favour of the appellant by declaring the Writ of Summons and the service of the processes as null and void. Per Joseph Tine Tur, J.C.A
