EMMANUEL NJOEMANA v. BARRISTER FRANK ONYEBUCHI UGBOMA & ANOR
(2014)LCN/6928(CA)
RATIO
PRACTICE AND PROCEDURE: IMPORTANCE OF SERVICE OF ORIGINATING PROCESS
It is a fundamental condition precedent that must be fulfilled before a Court or Tribunal can have competency or jurisdiction to entertain or adjudicate on the matter. A Court must therefore ensure that there is proper service on a Defendant of Originating Processes in an action before it assumes jurisdiction in a matter. See MOHAMMED M. KIDA vs. OGUNMOLA (2006) 13 NWLR (Pt. 997) 377 at 393 F-H to 394 A where Musdapher JSC (later C.J.N (Rtd) said: “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 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 justitia to have the Order set as a nullity. See Obimonure VS. Erinosho (1966) 1 ALL NLR 250; Mbadinuju Vs. Ezuka 1994 10 SCNJ 109, (1994) 8 NWLR (Pt. 364) 535; 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 National Bank (Nig) Ltd vs. Guthrie (Nig) Ltd. (1993) 4 SCNJ at 17; (1993) 3 NWLR (Pt. 284) 643.”
In effect, not only must there be service of process on the Defendant of all originating process, the service must be proper. The position was again restated or repeated in the case of First Bank of Nigeria Plc Vs. T. A. A. Industry limited (2010) 8 SCM 69 at 116 F-I per Adekeye J.S.C who held: “Consequently, failure to serve a process where service of process is required to be served renders any order made against the party not served with process null and void. In the instant Appeal not properly serving the Appellant with process, whereupon service was served on it through counsel already debriefed by him to the knowledge of the Applicant in the motion renders any order made against it in the Application null and void. Madukolu Vs. Nkemdilim (1962) 2 SCNLR Pg. 341 UBA Plc Vs. Ajileye (1999) 13 NWLR (Pt. 633) Pg. 116, Oke Vs. Aiyedun (1986) 2 NWLR (Pt. 23) Pg. 548. Also non-service of process affects the jurisdiction of a court in respect of any matter. Where a case comes before it by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction, the court completely assumes jurisdiction.
Proceedings conducted in a trial without due process being served on the parties or one of the parties amount to a nullity. The outcome of the proceedings will surely be against the principle of natural justice affecting the competence of the court which sat over the matter. Skenconsult Nig. Ltd. vs. Ukey (1981) 1 SC 6.”
It does not matter whether service of processes of court were effected, personally or vide substituted means. The whole essence is to ensure that the party against whom an action is instituted is aware or has knowledge of the action or suit against him. See DR. N. E. OKOYE & ANOR vs. CENTRE POINT MERCHANT BANK LTD (2008) 11 SCM 152 at 162 to 163 per TABAI, JSC who said
“In United Nigerian Press Ltd & Anor v. ADEBANJO (1969) 6 NSCC 395 at 396 this court, Per Fatayi-Williams, JSC (as he then was) spoke of the object and primary consideration in service of processes. He said: “In our opinion, the object of all types of services 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.” Per PETER OLABISI IGE, J.C.A
THE FAILURE OF THE APPELLANT TO PERSONALLY DEPOSE TO THE COUNTER AFFIDAVIT AGAINST THE APPLICATION OF 1ST RESPONDENT TO ENFORCE HIS FUNDAMENTAL RIGHTS IS FATAL.
It is not the law of evidence or practice and procedure that a party must give evidence or tender evidence on his or her own behalf personally before he could prove his case if he/she is the Plaintiff or to disprove allegations against him or her before a Court of Law can rule in his or her favour. A party is at liberty to prove or establish his case or defence through any person in accordance with the law without going into the witness box. See CROSS RIVER STATE NEWSPAPERS CORPORATION VS MR J.L. ONI & ORS (1995) 1 NWLR (PART 371) 270 at 293 per IGUH, JSC who held: “The first point that must be made here is that there is no rule of law or practice which requires a Plaintiff in a civil suit to be physically present in court or to testify if he can otherwise prove his case. Indeed, it ought to be mentioned that there is also no such rule which compels a Defendant in a civil suit to appear before the Court and to testify before he may successfully defend an action against him. See BRITISH AND FRENCH BANK LIMITED V. SOLEL-El-ASSAD (1967) NMLR 40; KEHINDE V. OGUNBUNMI and Others (1967) 1 ALL NLR 306 or (1968) NMLR 37. Per PETER OLABISI IGE, J.C.A
