SERVICE OF PROCESS SHOULD BE DONE IN THE RIGHT MANNER

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.”

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)

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

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

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